Seven Springs, LLC. - Ruling, August 23, 2002
Ruling, August 23, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Application of SEVEN SPRINGS, LLC,
for a State Pollutant Discharge Elimination System (SPDES)
Permit for the construction and operation of a Linear
Adsorption System and for sanitary wastewater discharges
to groundwater from a clubhouse facility as part of its
proposed development of a golf course located in the Towns
of Bedford, New Castle and North Castle, Westchester
County, New York, pursuant to Environmental Conservation
Law (ECL) Article 17, Titles 7 and 8 and Parts 750 through
758 of Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York (6 NYCRR Parts 750 -
758), and for a Water Quality Certification pursuant to
Section 401 of the Federal Water Pollution Control Act and
6 NYCRR Part 608.
DEC Application No.
August 23, 2002
SUMMARY OF RULINGS
This ruling identifies the parties and the issues for adjudication in the hearing on the application by Seven Springs, LLC, for a State Pollutant Discharge Elimination System (SPDES) Permit for the construction and operation of a Linear Adsorption System and for sanitary wastewater discharges to groundwater from a clubhouse facility as part of its proposed development of a golf course located in the Towns of Bedford, New Castle and North Castle, Westchester County, New York, pursuant to Environmental Conservation Law (ECL) Article 17, Titles 7 and 8 and Parts 750 through 758 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Parts 750 - 758), and for a Water Quality Certification pursuant to Section 401 of the Federal Water Pollution Control Act and 6 NYCRR Part 608. The parties to the hearing are the Applicant, the Department Staff, the Village and Town of Mount Kisco and the Town of Bedford. The issues identified for adjudication in the hearing are: (1) the lack of performance data as to the efficacy of the proposed Linear Adsorption System (LAS), (2) potential failure modes for the LAS, and (3) design limitations inherent in the LAS. Proposed issues which will not be adjudicated include (1) the controlled application of pesticides through weather forecasting, (2) the proposed effluent limits in the SPDES permit, (3) monitoring, (4) consequences of exceedances, (5) abatement or emergency backup system, (6) nutrient contamination of Byram Lake, (7) adequacy of special conditions in the draft permit as to Best Management Practices (BMPs) and low-pesticide or no-pesticide golf courses, (8) other stormwater management issues, (9) application for water quality certification under Clean Water Act Section 401, and (10) impacts on historic and archaeological resources.
Project Description and Location
Seven Springs, LLC, ("the Applicant") has proposed the development of an 18-hole championship golf course with associated amenities, including a clubhouse facility, on the 213 acre former Eugene Meyer estate located in the Towns of Bedford, New Castle and North Castle in Westchester County. The property is generally bordered on the south by the Meyer Nature Preserve, on the east by Byram Lake, on the west by Sarles Street and on the north by Oregon Road.
Associated with the golf course development is the construction and operation of a Linear Adsorption System (LAS), designed as a structural Best Management Practice for the treatment of stormwater from the managed turf areas of the course. The LAS consists of grassed, lined infiltration swales and activated carbon chambers that will result in the discharge of treated stormwater runoff at six outfall locations enumerated in the proposed draft permit as Outfalls 001 through 006. The receiving water for Outfall Nos. 001 and 002 will be tributaries of Byram Lake; for Outfall No. 003, Byram Lake; for Outfall Nos. 004 and 005, tributaries of the Kisco River; and for Outfall No. 006, a tributary of the Wampus River. Moreover, as part of the planned clubhouse facility, the Applicant proposes a septic tank with cast galleys system with a discharge of sanitary wastewater capacity of 9316 gallons per day.
The Applicant has applied for a State Pollutant Discharge Elimination System (SPDES) permit for the discharges from the aforementioned LAS, pursuant to Environmental Conservation Law (ECL) Article 17, Titles 7 and 8 and Parts 750 through 758 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Parts 750 through 758). In addition, pursuant to the aforementioned regulations, the Applicant requires a SPDES permit for the sanitary wastewater discharges from the clubhouse facility to groundwater. Moreover, the Applicant requires a Water Quality Certification from the Department pursuant to Section 401 of the Federal Water Pollution Control Act and 6 NYCRR Part 608.
SEQRA Status and Determination of Completeness
Pursuant to 6 NYCRR Part 617 of the implementing regulations for Environmental Conservation Law (ECL) Article 8, (State Environmental Quality Review Act - SEQRA), Co-Lead Agencies for SEQRA review in this matter are the Town of North Castle Town Board and the Town of Bedford Zoning Board of Appeals. The co-lead agencies determined that the project may have a significant environmental impact and issued a SEQRA Positive Declaration requiring the preparation of a Draft Environmental Impact Statement (DEIS). On February 27, 1998, a DEIS for this project was submitted to the co-lead agencies and, upon subsequent revision, was accepted by them on August 13, 1998. Following public hearings and a public comment period, a Final Environmental Impact Statement (FEIS) was submitted to the co-lead agencies on July 12, 1999, and, after subsequent revisions, was accepted by them on November 15, 2000.
On October 30, 2001, the Department issued a Notice of Complete Application for the proposed project.
LEGISLATIVE PUBLIC HEARINGS
Hearing of December 17, 2001, from 3:00 P.M. to 5:00 P.M.
A Notice of Legislative Hearing, dated November 14, 2001, was published in the Environmental Notice Bulletin (ENB) and as a legal notice in three newspapers of general circulation in the area of the proposed project, The Journal News on November 14, 2001, The Patent Trader on November 15, 2001, and The Record-Review, on November 16, 2001. The Notice provided, inter alia, that a legislative hearing, pursuant to 6 NYCRR Parts 617, 621 and 624 would be convened from 3:00 P.M. to 5:00 P.M., on Monday, December 17, 2001, at the Bedford Hills Community House, 74 Main Street, Bedford Hills, New York, to receive unsworn statements from the public concerning the permit application.
The hearing went forward as announced and was presided over by Administrative Law Judge (ALJ) Richard R. Wissler, the undersigned. Approximately 40 persons attended the hearing. Five individuals spoke and one submitted a written comment. The concerns expressed focused primarily on potential threats to Byram Lake from pesticide usage at the proposed golf course.
Hearing of December 17, 2001, at 7:00 P.M.
Although originally announced in the Notice of Legislative Hearing of November 14, 2001, as being held in the Bedford Hills Community House, concerns over the potential number of attendees led to a change in location for this evening hearing session to the Fox Lane High School auditorium, Fox Lane Campus, Route 172, Bedford, New York. In this regard, a Supplemental Notice of Public Hearing was published in the ENB on December 5, 2001, announcing the change in location for the evening session. This Supplemental Notice was also published in The Journal News on December 4, 2001, The Patent Trader on December 6, 2001, and The Record-Review on December 7, 2001.
The evening hearing session went forward as announced. Approximately 300 persons attended the hearing. Forty-one individuals spoke and twenty-one individuals submitted written comments. The concerns expressed focused primarily on potential threats to Byram Lake from pesticide usage at the proposed golf course and the efficacy of the proposed LAS.
As provided in the Notice of November 14, 2001, the filing of written comments was permitted until December 17, 2001.
Pursuant to the above published Notice of November 14, 2001, a pre-adjudicatory hearing Issues Conference was held at 1:00 P.M. on December 18, 2001, at the aforementioned Bedford Hills Community House to determine what issues, if any, within the scope of the Department's regulatory purview, required adjudication and to consider all timely filed applications for party status to participate in any adjudicatory hearing which might be convened in this matter. The participants at the conference were the Applicant, Department Staff, the Village and Town of Mount Kisco and the Town of Bedford.
The Applicant was represented by Stephen L. Kass, Esq. and Jean M. McCarroll, Esq., of the law firm of Carter, Ledyard & Milburn, 2 Wall Street, New York, New York 10005-2072.
The Department Staff was represented by Dominic Cordisco, Esq., Regional Attorney, from the Department's Region 3 Office, 21 South Putt Corners Road, New Paltz, New York 12561-1698.
The Village and Town of Mount Kisco was represented by Michael B. Gerrard, Esq., of the law firm of Arnold & Porter, 399 Park Avenue, New York, New York 10022-4690.
The Town of Bedford was represented by Joel H. Sachs, Esq., of the law firm of Keane & Beane, P.C., One North Broadway, White Plains, New York 10601.
The Issues Conference began with the identification of the various documents constituting the application and the draft permit as well as the DEIS and FEIS and their related plans, maps and exhibits.
In accordance with the Notice of November 14, 2001, petitions requesting full party or amicus status pursuant to 6 NYCRR 624.5(b) were to be filed by December 10, 2001. Two petitions for full party status were timely received, being those of The Village and Town of Mount Kisco (Mount Kisco) on December 10, 2001, and the Town of Bedford (Bedford), also on December 10, 2001. No other petitions were received. The mandatory parties, the Applicant and Department Staff, were asked to indicate what, if any, objection they had as to the standing of either Mount Kisco or Bedford as a party to the instant proceeding. The Applicant indicated that it had no objection with respect to either municipality's environmental interest in the matter and agreed that their respective petitions comported with the requirements of 6 NYCRR 624.5(b)(1). Department Staff stated that it also had no objection with respect to the standing of the municipalities and agreed that their petitions comported with the requirements of 6 NYCRR 624.5(b)(1).
Thereafter, the conference focused on the various issues asserted by the Petitioner municipalities to be both substantive and significant and therefore appropriate for adjudication pursuant to 6 NYCRR 624.4(c). Since the issues raised by Bedford were also articulated in the petition filed by Mount Kisco, the issues articulated by the latter provided the basis for discussion at the Issues Conference. Mount Kisco's petition identified six areas of concern, designated A through F, and articulated specific issues with respect to each. These areas of concern are as follows:
- Pesticide Contamination of Byram Lake,
- Nutrient Contamination of Byram Lake,
- Adequacy of Special Conditions-BMPs in Draft Permit and Low-Pesticide and/or No-Pesticide Golf Courses,
- Other Stormwater Management Issues,
- Application for Water Quality Certificate under Section 401 of the Clean Water Act, and
- Impacts on Historic and Archaeological Resources.
The Issues Conference concluded at 7:40 P.M.
As a result of discussions at the Issues Conference, certain language changes were proposed to the draft permit. These changes were evaluated by Department Staff and a revised draft permit incorporating some of these proposed changes was provided to the participants for their review and comment on January 15, 2002. Upon receipt and review of these comments, Staff issued a final draft permit on February 22, 2002. A site visit was conducted on February 1, 2002, attended by all parties.
RULINGS ON PARTY STATUS
The Applicant and the Department Staff are automatically full parties to the proceeding pursuant to 6 NYCRR 624.5(a).
With respect to the petitioners Mount Kisco and Bedford, as provided in 6 NYCRR 624.5(d) and as applicable to this matter, to be entitled to full party status a determination must be made that they each have:
- Filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2);
- Raised a substantive and significant issue; and
- Demonstrated an adequate environmental interest.
Both Mount Kisco and Bedford are municipalities in Westchester County, New York, and the proposed golf course will lie upon lands located within Bedford's incorporated borders. Moreover, the land upon which the course will be developed borders Byram Lake which is used exclusively as a surface water supply for Mount Kisco and some of the surrounding community. In fact, all of the residents of Mount Kisco and many of the residents of Bedford rely on Byram Lake as their sole source of drinking water. Both of the Petitioners are concerned with the quality of stormwater runoff leaving the Applicant's site during and after development of the golf course and entering Byram Lake. In particular, they are concerned that the stormwater controls and treatment proposed by the Applicant will not be adequate to prevent the contamination of Byram Lake by pesticides and nutrients leaving the site in stormwater runoff. At the Issues Conference, the Applicant indicated it had no opposition to either Mount Kisco's or Bedford's statement of environmental interest and agreed that the petitions for full party status they had each submitted comported with the requirements of 6 NYCRR 624.5(b)(1). Department Staff concurred with the Applicant's position.
As will be discussed hereinafter, the Petitioners have raised three substantive and significant issues for adjudication and provided adequate offers of proof with respect to each as to (1) the lack of performance data as to the efficacy of the proposed Linear Adsorption System (LAS), (2) potential failure modes for the LAS, and (3) design limitations inherent in the LAS.
Upon the record, I find that the Petitioners, Mount Kisco and Bedford have met the requirements of 6 NYCRR 624.5(d) in that each has filed a petition that comports with the requirements of 6 NYCRR 624.5(b)(1) and (2), raised issues that are both substantive and significant, and demonstrated an adequate environmental interest. Accordingly, Mount Kisco and Bedford are granted full party status in this proceeding.
STANDARDS FOR ADJUDICABLE ISSUES
In accordance with the standards articulated in 6 NYCRR 624.4(c), an issue is adjudicable only if it relates to a dispute between the Department Staff and the Applicant over a substantial term or condition of a proposed draft permit, relates to a matter cited by the Department Staff as a basis to deny the proposed permit and such matter is contested by the Applicant, or is proposed by a potential party and is both substantive and significant.
An issue is substantive if there is sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the proposed project, such that a reasonable person would require further inquiry. In determining whether such sufficient doubt exists, the ALJ will consider the issue in light of the permit application and related documents, such as the DEIS and FEIS and the exhibits annexed to each, the proposed draft permit, the content of any petitions filed for party status, the record of the issues conference, and any subsequent written arguments or submissions authorized by the ALJ.
An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.
Pursuant to 6 NYCRR 624.4(c)(4), where the Department Staff has reviewed a permit application and finds that the Applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party proposing any issue related to the project to demonstrate that that issue is both substantive and significant. This burden of persuasion is met by an appropriate offer of proof. As stated by the Commissioner, "the offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner, April 2, 1982.
In the instant proceeding, the Department Staff has determined that, in light of the special conditions contained therein, there are no statutory or regulatory prohibitions or restrictions which would preclude issuance of the requested SPDES permit or the Water Quality Certification to the Applicant. It is the Petitioners' burden to demonstrate that the issues they have raised are adjudicable.
ISSUES PROPOSED FOR ADJUDICATION
Part V of Mt. Kisco's petition sets forth the issues it deems to be adjudicable in this proceeding and further divides that Part into six areas of concern, designated Subparts A through F, articulating specific issues relative to each. These Subparts will be used as the guide for the consideration of the issues in this Ruling. The Subparts are (A) Pesticide Contamination of Byram Lake, (B) Nutrient Contamination of Byram Lake, (C) Adequacy of Special Conditions-BMPs in Draft Permit and Low-Pesticide and/or No-Pesticide Golf Courses, (D) Other Stormwater Management Issues, (E) Application for Water Quality Certification under Section 401 of the Clean Water Act, and (F) Impacts on Historic and Archaeological Resources. See, "Request for Adjudicatory Hearing and Petition for Full Party Status", dated December 10, 2001, and submitted by the Village and Town of Mt. Kisco, pp. 7-33, hereinafter "M. P." and page number.
Byram Lake and Environs
By way of additional background, Byram Lake reservoir, as noted above, borders the Applicant's property to the east. The Lake is the sole source of the drinking water supply for approximately 10,000 residents of the Village and Town of Mt. Kisco, the Mt. Kisco commercial area which includes the Northern Westchester Hospital Center, and for a number of the residents of the Town of Bedford, as well as the Town of New Castle. M.P., p. 2, and "Application on Behalf of the Town of Bedford New York for Party Status," dated December 7, 2001, and submitted by the Town of Bedford, p. 2, hereinafter "B.P." and page number. The reservoir covers 161 acres and receives surface water runoff from a surrounding watershed of approximately 810 acres. DEIS, p. IV-181. This runoff is the result of precipitation which averages about 47 inches annually. DEIS, p. IV-54. Byram Lake, Water Index Number LIS-13-1104, is classified as a Class "AA" water body by the Department. DEIS, p. IV-141. Byram Lake forms the headwaters of the Byram River which flows southerly from the Lake discharging ultimately into Long Island Sound. Approximately three miles south of the project, the Byram River is joined by the Wampus River. An unnamed tributary of the Wampus River is located just south of the site and is classified as Class "C" by the Department. The Kisco River is located north of the site and a sub-tributary of the Kisco is located at the western edge of the site. The Kisco River ultimately discharges into the New Croton Reservoir, a part of the New York City Watershed and regulated by the New York City Department of Environmental Protection. DEIS, p. IV-142.
The proposed golf course will occupy 212.9 acres and will encompass three watersheds draining surface runoff from the site to either Byram Lake, the Kisco River or the Wampus River. DEIS, Exhibit 4C-32 and Table IVC-9. The three watersheds are further divided into six drainage sub-basins designated Drainage Areas A through F. While the boundaries of these designated drainage areas are not entirely contiguous with the boundaries of the site, on the site, Drainage Areas A, B, and C respectively contain 79.8 acres, 18.3 acres and 20.8 acres. All of the area of these three sub-basins, a total of 118.9 acres, drains ultimately to Byram Lake. DEIS, p. IV-142. Accordingly, Byram Lake receives and will continue to receive approximately 56 percent of the surface runoff from the site.
Hydrogeologic investigations were conducted at the site in order to assess the flow, quantity and quality of groundwater in the area. These investigations revealed that groundwater flows are generally north to south, away from Byram Lake. DEIS, p. IV-117; FEIS, p. III-2. An aquifer recharge analysis showed that the anticipated demands placed on groundwater resources at the site by the proposed golf course irrigation system would not exceed the total recharge to the property itself. FEIS, p. III-3. Finally, analytical results of water samples taken from 24 residential wells in the area failed to detect the presence of any pesticides. DEIS, p. IV-119.
An analysis of the waters of Byram Lake as well as its bottom sediment was conducted to determine the presence of certain pesticides including cabaryl, metalaxyl, benefin, iprodione, acephate, etridiazole, chlorothalonil, pendimethalin, propamocarb, trichlorfon, tridimefon, cyprocanazole, fenarimol, MCPP, dicamba, 2,4-DP and 2,4-D. The test results showed that neither the waters of Byram Lake nor its bottom sediments contain any of the aforementioned pesticides. DEIS, p. IV-186 and Table IVC-21.
An examination of the regional geology indicates that the bedrock of the area is predominately granitic gneiss which has undergone extensive foliation. DEIS, Exhibit 4C-3. This folding of the granitic gneiss has resulted in the 250 foot high escarpment on the eastern edge of the proposed site where it borders Byram Lake. FEIS, p. III-2. Moreover, this folding has caused faulting and fracturing of the bedrock and has provided a porosity through which groundwater now flows. DEIS, p. IV-48. As a consequence, seeps have formed in the aforementioned escarpment permitting the release of groundwater to the surface. An investigation of these seeps was conducted and included in the FEIS as Appendix C-7. The investigation revealed that there are three seeps in the escarpment. Two of these seeps are located to the north and hydraulically upgradient of the proposed site. The third seep is located adjacent to the proposed golf course, just below monitoring well MW-7, some 75 yards from Byram Lake. This seep discharges groundwater at a rate of approximately three gallons per minute. FEIS, Appendix C-7.
Consistent with its stated objective as articulated in the DEIS Final Scope, page 26, (DEIS, Appendix A) that the impact of the proposed project will cause "no measurable increase in pollutant loading to Byram Lake and the New Croton Reservoir and its tributary watercourses," the Applicant has proposed an overall plan of mitigation to address both the quantity and quality of stormwater runoff exiting from the site. With respect to the quantity of stormwater runoff exiting the site, the Applicant has proposed a number of design controls to be built into the golf course, including the construction of new impoundment structures and detention ponds, as well as incorporating and utilizing features of the existing topography of the site. Storm Water Pollution Prevention Plan, dated July 2001, page 24, hereinafter SWPPP and page number. These design controls are based upon an analysis of data gathered from a study of soils and drainage flows at the site performed by the Applicant's consultant, TRC Raymond Keyes Associates (TRC), and included a consideration of rainfall values, in inches, for 24-hour, Type III storms of 1, 2, 5, 10, 25, 50 and 100 year magnitude. SWPPP, p. 15. Calculations of both pre-development and post-development discharge rates were performed and the results are summarized in Tables III-2 and III-6 of the SWPPP. Based upon these calculations, TRC asserts that with the proposed design controls in place "the peak runoff rates under the post development condition will be equal to or less than the peak runoff rates for the pre-development conditions." SWPPP, p. 31.
In order to avoid unnecessary pesticide and fertilizer applications, the Applicant has proposed a protocol it calls the Integrated Turfgrass and Pest Management Plan (ITPMP) which requires "careful selection of pest-resistent grasses, the construction of appropriate topsoil, a strict regime of controlled fertilization, optimal levels of irrigation, and selective use of appropriate pesticides as a last resort." FEIS, p. I-5. "Pesticides," the Applicant maintains "will be used on the proposed golf course only when pest levels exceed a certain threshold, when weather conditions favor pest development, and when other control methods have failed." FEIS, id.
Proposed Linear Adsorption System (LAS)
To address the quality of stormwater runoff from the site, and in particular pesticide contaminants contained therein, the Applicant has proposed a system it has named the Linear Adsorption System (LAS) consisting of a series of adsorption swales and activated carbon chambers to be located throughout the course. FEIS, I-7. The LAS is intended to remove pesticides to less than measurable levels that may be present in the first flush of stormwater runoff from a 1-year, 24-hour storm event. DEIS, pp. IV-235 to IV-236. As an LAS design parameter, the 1-year, 24-hour storm event is assumed to be 2. 6 inches in accordance with statistics published by the Westchester County Department of Planning. Id., at p. IV-236. The "first flush" of stormwater is defined by the Department as "the delivery of a disproportionately large load of pollutants during the early part of storms due to the rapid runoff of accumulated pollutants" and equal to "one-half inch of runoff per acre of land which has been made more impervious from pre-development (natural) conditions through land clearing, land grading and construction/development activities." Division of Water Technical and Operations Guidance Series (TOGS) 5.1.8, entitled, Stormwater Management Guidelines For New Development, p. 1. Moreover, the first flush of stormwater from the aforementioned 1-year, 24-hour storm event is assumed by the Applicant to contain "approximately 90 percent of all runoff-related pollutants." DEIS, p. IV-157.
Essentially, an LAS unit consists of four component parts: (1) a grassed infiltration swale, (2) a lined infiltration trench, (3) collection piping, and (4) a granulated activated carbon (GAC) contact chamber. FEIS, p. III-7. The first three of these component parts comprise the linear adsorption swale. A cross section of the typical adsorption swale proposed for the golf course is depicted at Section C-C of DEIS Exhibit 4C-37. As shown, the adsorption swale consists of a circular bottomed trench approximately 6 feet wide and 52 inches deep which has been fully lined with an impervious 40 mil HPDE liner. The top level of the swale consists of 18 inches of top soil formed into a concave trench and planted with grass, at the bottom of which is located a 6 inch by 6 inch channel filled with 3/8 inch pea gravel. This channel runs medially the length of the swale. Beneath this topsoil and gravel channel layer is a 4 inch layer of sand and then a 24 inch layer of loam, each layer spanning the width of the swale. At the bottom of the loam layer is a membrane of filter fabric, also spanning the width of the swale and covering a final layer of gravel, 6 inches deep. At the bottom of this final gravel layer and running medially the length of the swale is a 4 inch diameter HDPE perforated collection pipe which ultimately connects to the fourth component of the LAS, the GAC adsorption contact chamber.
A typical GAC adsorption contact chamber is depicted in DEIS Exhibit 4C-38. It consists of a concrete chamber 4 feet deep and of such overall length and width as is necessary to accommodate the predicted stormwater flow for the section of the course for which the particular chamber is designed, such that flowing runoff remains in contact with the GAC for at least 10 minutes. DEIS, p. IV-239. At the center of one end of the chamber is an opening to receive the 4 inch collection pipe from the adsorption swale. This communicates with a void in the chamber 2 feet in width and thence to a baffle wall behind which is located the granulated carbon of such a depth as is appropriate to the particular chamber. At the bottom of the carbon medium is a trident array of 4 inch PVC perforated collection pipe which converges to a single 4 inch diameter PVC discharge point which passes through the chamber wall at the other end of the chamber opposite the end receiving the collection pipe from the adsorption swale. Hatches in the top of the chamber permit a visual inspection of the interior of the chamber and the GAC when their covers are removed. A 4 inch vent pipe is also located atop each chamber.
The LAS is designed to function essentially in the following manner. Stormwater flows from areas of the proposed golf course where pesticides have been applied will be directed to the appropriate linear adsorption swale. The water will infiltrate downward through the medial gravel channel, the sand layer, the loam layer and the filter fabric to the lowest gravel layer where it will flow into the perforated collection pipe. DEIS, p. IV-235. This process will provide some initial removal of pesticides through vegetative uptake, filtration and adsorption into the filtration medium as well as initial removal of suspended solids in the runoff. DEIS, p. IV-237. The water will then flow through the collection pipe and into the void in the GAC contact chamber. The water will then pass through the baffle wall and into the granulated activated carbon medium where pesticide removal will occur. Thereafter, it will flow into the collection pipes at the bottom of the carbon medium, and, by gravity, flow through the discharge pipe and exit the chamber. DEIS, p. IV-239. The discharged water will flow to the ground surface over velocity dissipating material such as rip rap, and thus be returned to the drainage basin on the course from which it originated. Id.
In designing the LAS, surface water runoff characteristics for the site were examined. First, the volume of runoff to each proposed swale was predicted by considering the influence of soil hydrology and vegetation cover and expressing this relationship as a single parameter called a curve number. Using this curve number and data supplied by Westchester County, runoff depths for the drainage sub-basins at the site were determined. DEIS, p. IV-236. By multiplying the drainage area to a proposed swale by the appropriate runoff depth, the volume of anticipated runoff to each proposed swale was determined. Id. Second, in order to understand how volume and rate of flow vary with time, runoff hydrographs were generated using a computer model called HYDROFLOW, which hydrographs were used to design the size and permeability of the linear adsorption swales. DEIS, p. IV-237. In order to determine subsurface flows through the various media layers of the linear adsorption swales and the carbon contact chambers to allow an infiltration rate sufficient to accommodate the total volume of runoff in a reasonable time while at the same time allowing for sufficient detention of the runoff in the GAC, a MODFLOW computer model to simulate subsurface flow was developed using the HYDROFLOW generated runoff hydrographs as inputs. In this way, design of an LAS unit without excessively large linear adsorption swales or carbon contact chambers was avoided. Id.
The Applicant concedes that the LAS has never been used on any other golf course but points out that "it utilizes established techniques to protect water quality" and that "it has been specifically designed for this project and represents, to the best of the applicant's knowledge, the first systematic application of those techniques to an entire golf course." FEIS, p. I-7.
The Applicant believes that the LAS will be successful in lowering concentrations of pesticides from stormwater runoff from the golf course to non-detectible levels below each utilized pesticide's practicable quantitation limit (PQL), which limit is 10 percent of the Health Advisory Level (HAL) established for each pesticide. Accordingly, no measurable pesticide pollutant loading should occur to off-site watercourses as a result of the project. DEIS, p. IV-242. The HAL is defined, the Applicant states, "as the concentration of a pesticide in water that can be theoretically consumed for a lifetime without causing adverse effects to humans," DEIS, p. IV-129, while the PQL is defined "as the ability of a laboratory analytical method to reliably quantify the presence of a compound." DEIS, p. IV-230.
Consistent with the Applicant's assertions as to the efficacy of the LAS, the Department has proposed a draft SPDES permit covering the various LAS outfalls and imposing effluent limits for each of the 23 pesticides to be utilized at the golf course equal to the PQL for each pesticide. See, Draft SPDES Permit, dated February 22, 2002. The permit also contains a detailed sampling protocol to be followed in monitoring the LAS units. Department Staff believes that the proposed SPDES permit is fully protective of the receiving waters impacted by this project, including Byram Lake.
However, should monitoring of the individual LAS units reveal a persistent failure of the entire LAS, the Applicant has proposed a standby supplemental system which can be implemented within two weeks of the confirmation of the LAS failure. FEIS, p. III-8. The system would provide for the collection of the first-flush runoff at various collection points located throughout the course. Id. This collected runoff would then be directed through two carbon contact units. Id. All the components of the standby system except for the two carbon contact units would be installed during construction of the golf course. Id. The Applicant asserts that the carbon contact units, if required, can be made available and installed within two weeks. Id. A detailed summary of the supplemental standby system in contained in FEIS, Appendix C-6.
Other Best Management Practices (BMPs) to Remove Nutrients
To remove nutrients such as phosphorous and nitrogen from stormwater runoff, the Applicant has proposed implementation of certain Best Management Practices (BMPs). These BMPs include appropriately located detention basins, forested filter strips, swales, and ponds through which runoff would be directed. FEIS, p. I-7. These measures, the Applicant believes, will reduce nutrient levels in runoff exiting the site to below pre-development levels. Id.
A. Pesticide Contamination of Byram Lake
The first area of concern raised by Mt. Kisco, designated Subpart A of Part V, is entitled "Pesticide Contamination of Byram Lake." Subpart A is also further divided into six issues for consideration: (1) Effectiveness of the LAS, (2) Controlled Application of Pesticides Through Weather Forecasting, (3) Proposed Effluent Limits in Permit, (4) Monitoring, (5) Consequences of Exceedances, and (6) Abatement or Emergency Backup System.
Issue A(1). Effectiveness of the LAS
(a) Lack of Performance Data
Positions of the Parties
In challenging the effectiveness of the LAS, Mt. Kisco articulates three areas of concern which include (a) the lack of empirical data as to the performance of such a system, (b) potential failure modes inherent in the system's design and (c) overall inadequacy of the proposed system, even if fully functional as designed.
With respect to the lack of performance data, Mt. Kisco points out that in granting a SPDES permit, the Department must, in accordance with 6 NYCRR 754.1(b) and based upon the submitted permit application, plans, or other available information, make "a determination ... that compliance with the specified permit provisions will reasonably assure compliance with applicable water quality standards." M.P., p. 9. Although composed of components used separately in other water treatment contexts, the LAS, as proposed, presents a system that has never been assembled or used anywhere in the world and is, in effect, a new technology. Transcript of Issues Conference of December 18, 2001, page 25, hereinafter I.C. and page number. Moreover, Mt. Kisco points out that the proposed LAS has never been tested anywhere on a pilot basis. M.P., p. 10. Without the availability of such past performance data for comparative purposes, asserts Mt. Kisco, the Department cannot make the "determination" required by 6 NYCRR 754.1(b) and, indeed, it would be inappropriate for it to do so. M.P., p. 10; I.C., p. 25. Accordingly, the Applicant should be required to conduct such a pilot test in order to gather the appropriate comparative performance data. M.P., p. 10. Opportunities for such pilot testing exist, points out Mt. Kisco, at other courses the Applicant's principal is constructing, most notably a course in Briarcliff Manor. M.P., p. 10; I.C., p. 26.
The Applicant maintains that the LAS is not a new technology but, rather, a combination of three proven and reliable techniques or components: (1) swales to control runoff, as is common at golf courses, (2) carbon to remove pesticides from the runoff, in a manner similar to the use of carbon to remove pesticides from drinking water and (3) gravity. I.C., pp. 27-28. Since these three components embrace accepted and demonstrated techniques, there is no reason to view them as a new technology requiring further demonstration. Id., at p. 28. Accordingly, Department Staff is correct in its finding that the LAS could operate effectively. I.C., p. 29. Moreover, since the draft SPDES permit requires zero discharge with respect to pesticides, the Applicant will be under a continuing burden to ensure the efficacy of the LAS or face various Department sanctions, including revocation of the instant SPDES permit. Id. Finally, since there will be monthly testing of the system throughout the life of the permit, "there is no realistic prospect" that damage would occur "even if part of the system did not work," rendering the need for a pilot project inappropriate. Id.
Department Staff concurred with the position taken by the Applicant and noted that the permit has certain safeguards included in it that are protective of the receiving waters such as a protocol requiring the cessation of the application of any pesticide for which an effluent exceedance has been determined, until such time as an appropriate plan of mitigation has been proposed, approved and implemented. I.C., p. 30. Although conceding during subsequent colloquy that a pilot test of the LAS might be prudent, Department Staff pointed out that conducting such a test was within the discretion of the Applicant and not a condition of the draft SPDES permit. I.C., pp. 30 and 55-56. Moreover, Department Staff asserted that a pilot test was not an issue for adjudication. Id.
While agreeing that the LAS component arrangement as proposed has never been tried on any other golf course, the Applicant reiterated that swales are commonly used to control stormwater flows on golf courses and further pointed out, that to its knowledge, carbon filtration has been used in processing runoff from greens. I.C., pp. 31-32. The Applicant was unable to identify the golf course where such carbon filtration was used, however. I.C., p. 43. Moreover, the Applicant's expert, A. Martin Petrovic, only indicated that he was familiar with a system on a golf course on Long Island that used a peat and sand filter to filter out pesticides in runoff from greens. I.C., p. 44. But, Mt. Kisco stressed, this was not a system using granulated activated carbon. Id.
The Regional Attorney argued that the Department Staff has had extensive experience in reviewing plans for stormwater management as well as the use of carbon filters to remove pollutants. I.C., p. 33. Concurring in this position, Angus Eaton, Chief of the Division of Water's Chemical Systems Section, pointed out that carbon filtration is presently used for removal of pesticides from effluent at a wastewater treatment facility in Niagara Falls. I.C., p. 34. Mt. Kisco argued that this utilization of carbon filtration in Niagara Falls was to be distinguished from the LAS, because, in Niagara Falls, the process involves a closed system of pipes and carbon chambers to treat industrial wastewater from chemical plants in Niagara Falls. Moreover, wastewater flows through that system are highly controlled and the carbon media can be backwashed or removed for reactivation and replaced. I.C., p. 37. This is not the case with the LAS where stormwater runoff flows will, by comparison, be uncontrolled and it is unknown how effectively the carbon will handle that runoff, i.e., whether it will go through it or around it. I.C., p. 37-38.
Conceding that swales and carbon chambers have both been extensively used in separate applications, the problem, Mt. Kisco urged, is that this is the first time an interface of these two technologies has ever been proposed, and such a linking of these two technologies is, at present, untested. I.C., p. 38. The construction of the LAS at Seven Springs would be the first test of such a system and, should it fail, the options to address any problems after construction of the golf course would be necessarily limited. Potential problems with the LAS should be addressed pre-construction. I.C., p. 39.
The Applicant pointed out that the LAS was, in fact, an additional level of protection for the course which would, in the first instance, pursuant to its turf management plan, use only modest and controlled amounts of pesticides, typically on a spot basis. I.C., p. 42. With respect to the possibility that the LAS could be built at the Applicant's principal's proposed golf course in Briarcliff Manor, the Applicant indicated that that course was well under construction and did not utilize an LAS and that it would be difficult to retrofit it for an unneeded LAS. I.C., p. 47. Moreover, various problems would be presented if such an LAS retrofit were to be undertaken at Briarcliff Manor, including different soil conditions, different drainage patterns, the need for a permit from the Town Planning Board and approval of the Town Board. I.C., pp. 48-50. The Applicant, however, did concede that perhaps one or two hundred feet of one hole at Briarcliff could be retrofitted with an LAS, but that such a pilot could not be accomplished in a reasonably short period of time, would be dependent on rainfall at Briarcliff and could involve an array of pesticides different from those proposed at Seven Springs. I.C., pp. 50-51.
Agreeing with the Applicant that retrofitting Briarcliff with an LAS would be difficult, Mt. Kisco argued that this was precisely the point, for if the proposed LAS at Seven Springs does not work, it will be extremely difficult to retrofit. I.C., p. 53. To this, the Applicant countered stating that if the proposed LAS did not perform as designed, then the application of pesticides to the course will cease. Moreover, the proposed standby system would provide an additional level of protection for the public. I.C., pp. 54-55.
Mt. Kisco argued that although a pilot test should be required in order to develop the performance data it believes the Department must have in order to make any determination required under 6 NYCRR 754.1(b) as to the efficacy of the LAS, and that lack of this data raises an issue that is both substantive and significant, resolution of the matter need not necessarily require the testimony of witnesses at an adjudicatory hearing. I.C., p. 27. Suggesting only that the issue was not one requiring an actual adjudicatory hearing, Bedford inquired whether or not the Department could include the condition of a pilot test in the SPDES permit. I.C., p. 56. Department Staff answered this inquiry by stating that such a condition was not provided for in the proposed permit. Id. The Applicant asserted that the appropriate standard was "whether or not there has been a showing of a reasonable degree of engineering that a proposed facility is likely to work" and that this standard had been met. Id. Mt. Kisco concluded by pointing out that 6 NYCRR 624.9(b)(1) provides that the Applicant has the burden to demonstrate that its proposal will be in compliance with all applicable laws and regulations administered by the Department and that one of these regulations mandates the "determination" to be made by the Department pursuant to 6 NYCRR 754.1(b) as to the efficacy of the LAS. I.C., p. 57. Without a pilot test such a determination, and therefore compliance with 6 NYCRR 754.1(b), cannot be made. Id.
Section 754.1 of 6 NYCRR delineates various applicable standards, limitations and other requirements for SPDES permits. Subdivision (a) of Section 754.1 specifically enumerates the applicable provisions of the Clean Water Act and the Code of Federal Regulations with which all SPDES permits must comply. Resolution of the issue before us turns upon an understanding of the meaning and intent of 6 NYCRR 754.1(b), which provides in pertinent part as follows:
(b) In any case in which an issued SPDES permit contains provisions applicable pursuant to subdivision (a) of this section, such permit shall state that on the basis of a submitted application, plans, or other available information, a determination has been made that compliance with the specified permit provisions will reasonably assure compliance with applicable water quality standards.
As is apparent on its face, the proposed SPDES permit in this matter contains effluent limitations for stormwater runoff for various pesticides listed therein in accordance with the mandates of Subdivision (a) of Section 754.1. Moreover, these limits are set at the PQL, de minimis levels equal to ten percent of the established HAL for each pesticide, in an effort to ensure that the quality of the receiving waters, Byram Lake, the Wampus River and the Kisco River, are not impermissibly contravened. Section 754.1(b) requires, in effect, that a reasonable balance be established between the proposed effluent limits and the preservation of water quality before a SPDES permit can be issued. On one side of the scale are the proposed effluent limits, on the other side of the scale are the water quality standards. A SPDES permit will only issue if this scale is in reasonable balance. As the regulation makes clear, this reasonable balance is found as the result of a deliberative process involving a consideration of the "submitted application, plans, or other available information." This latter phrase, "submitted application, plans, or other available information," means that the required deliberation must be based upon an analysis of the facts, specifically, facts articulated in the application, facts depicted on the plans, and facts provided by other relevant and reliable sources of information. If the facts are incomplete or if they are non-existent, the deliberative process cannot go forward and the "determination" required by Section 754.1(b) cannot be made. In the instant application, the facts are both incomplete and, as yet, non-existent as to the empirical efficacy of the proposed LAS. As a new process, the LAS must be evaluated in light of established legal and scientific standards and methods.
Whether or not a proposed new process or technology can be reasonably relied upon to produce the result intended is not only a function of the scientific principles upon which it is based, but whether or not the process has "gained general acceptance in the particular field in which it belongs." Frye v. U.S., 293 F. 1013 (App.D.C., 1923), [Use of systolic blood pressure to evaluate the truthfulness of a witness]; People v. Wesley, 83 N.Y.2d 417 (1994), [Admissibility of DNA identification tests]. And it can only attain that status of general acceptance when it has "passed beyond the trial stage." People v. Magri, 3 N.Y.2d 562 (1958), [Use of radar in determining a motor vehicle's speed]. This means that a sufficient factual history of the proposed process exists such that a reasonable person could rely thereon in concluding that the proposed process will function as intended and designed. Indeed, this reasoning is at the heart of the Commissioner's decision in Matter of Mirant Bowline, LLC, of March 19, 2002. In determining whether or not the Gunderboom should be considered an available technology for Best Technology Available (BTA) analysis of cooling water intake structures (CWISs), the Commissioner considered the history of the process as supplied by the manufacturer; prior Department decisions such as Matter of Athens Generating Company, LP., dated June 2, 2000; a USEPA study and evaluation of the technology; field studies of the technology conducted at the Lovett power plant in Rockland County; and the American Shad Impingement Study undertaken by Department Staff in 2001. Based not only upon a review of prior decisions and scientific literature but upon a review of the accumulated factual data, the Commissioner found that, on a case by case basis, Gunderboom technology could be part of a CWIS. Even though the Gunderboom is essentially only a porous curtain, suspended either from floats or attached to a fixed structure at the opening of a cooling water intake, which provides a physical barrier between the CWIS and aquatic biota, it was not until adequate empirical data was gathered and considered that the Commissioner was able to find the technology appropriate for BTA analysis.
The issue before us is similar to that in Mirant Bowline. The LAS, while relatively simple in design like a Gunderboom, has never, unlike a Gunderboom, been constructed, tested, evaluated or used on any golf course anywhere in the world. No factual data exists with respect to its actual performance. Clearly, the "determination" required by Section 754.1(b) cannot be made by reference to the application alone. It cannot be made by looking at the plans alone. Only by an evaluation of performance data collected in the field can a reasonable determination be made that the LAS as proposed and designed will operate at the level of efficiency adequate to satisfy the effluent limits set forth in the draft SPDES permit. Without this "other available information," which is currently not available, it is impossible for the Department to make the determination required by Section 754.1(b).
Finally, it does not follow that because the use of swales on golf courses is common and understood, and because a known property of granulated activated carbon is its ability to remove pesticides from water, that therefore the conjunction of the two will provide an effective system. Speed radar, DNA identification tests and Gunderbooms are each comprised of individual parts, which parts are in turn each of known scientific reliability. Each represents a process that is an interface of known technologies. But it does not follow that the whole process can be deemed reliable merely because each of its component parts is reliable. This is the logic reflected in the court cases and Commissioner's decisions cited. In each matter, the determination of reliability or acceptability was based upon an evaluation of empirical data of the proposed system as a whole. This empirical data on the performance of the LAS system, as a whole, is the missing but essential information needed in order make the reasonable determination contemplated by Section 754.1(b).
Section 621.15(b) of 6 NYCRR provides that "at any time during the review of an application for a new permit ... the department may request in writing any additional information which is reasonably necessary to make any findings or determinations required by law." (Emphasis supplied.) Clearly, empirical data as to the actual in-the-field performance of the proposed LAS is "additional information which is reasonably necessary to make any findings or determinations required" under 6 NYCRR 754.1(b). Moreover, as is apparent from a plain reading of Section 621.15(b), such additional information can be requested even after Department Staff has determined the subject permit application to be complete. See, e.g., In the Matter of the Application of Al Turi Landfill, Inc., Rulings of the ALJ, June 19, 1998. This empirical data is necessary to determine whether the effluent limits in the draft permit are, in fact, realistic and attainable, thus ensuring that compliance with the draft permit will "reasonably assure compliance with applicable water quality standards" in accordance with Section 754.1(b). How this body of empirical data might best be assembled is the subject of the Summary and Conclusion section at the end of this ruling.
Consistent with prior administrative rulings of this Department, it is clear that a Petitioner can articulate an issue that is both substantive and significant by identifying a material defect or omission in the permit application or its supporting documentation that may adversely affect permit issuance. In the Matter of Broome County Department of Public Works, Decision of the Commissioner, June 11, 1984; In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner, April 2, 1982. For the purposes of this proceeding, the Petitioners herein have met this burden. Accordingly, I find that the lack of performance data for the proposed LAS is an issue that is both substantive and significant.
Ruling No. 1: The lack of performance data as to the efficacy of the proposed LAS has raised an issue that is substantive in that the lack of such data precludes the Department from making the required determination under Section 754.1(b) that compliance with the provisions of the draft SPDES permit will reasonably assure compliance with water quality standards and is significant in that failure to make such a determination will result in denial of the permit. Accordingly, I direct that such performance data be assembled and, if necessary, the Issues Conference reconvened for its receipt and evaluation.
(b) and (c). Potential Failure Modes and Design Limitations
Positions of the Parties
Mt. Kisco has raised concerns regarding potential failure modes of the LAS, including, (1) whether the grading and elevation of the proposed swales are adequate to capture stormwater runoff and provide sufficient hydraulic head for the efficient operation of the LAS, (2) the potential for the swales and carbon chambers to clog with debris, (3) whether the carbon filtration medium will remove pesticides to the levels asserted by the Applicant, and (4) whether the seeps along the escarpment to the east of the site will allow the infiltration of untreated pesticides, as well as nutrients, directly into Byram Lake. M.P., pp. 10-12.
With respect to the adequacy of the grading and elevation of the swales, Mount Kisco points out that while the design parameter assumed for the swales is the first flush of a 1-year, 24-hour storm event, the precipitation history of the area suggests that events greater than these are to be expected. When such a greater event occurs, the swales will overflow and untreated pesticide-laden stormwater will bypass the LAS. I.C., pp. 59-60. Moreover, this overflow could result in the formation of gullies and side channels, allowing even more stormwater to avoid the swales and evade treatment. M.P., p. 11. Finally, Mount Kisco argues that, for certain of the proposed LAS units, there is an inadequate difference between the depth of the mouth of the swale collection pipe where it enters the GAC chamber and the depth of the discharge pipe from the GAC chamber. This will impact the gravity-driven hydraulics of the LAS, causing a backup in the swale collection pipe resulting in the failure of the LAS unit to capture its designed level of stormwater runoff, thus allowing additional runoff to evade treatment. M.P., p. 11 and Exhibit B, Lawler Letter of September 3, 1999, p. 5. Since the depth of the proposed LAS swale from grade to collection pipe is 4 feet 4 inches, and the depth of the GAC chamber is 4 feet from top to bottom, Mount Kisco's consultant argues a minimum of 8 feet 4 inches is required from grade to the mouth of the discharge pipe from the GAC chamber in order to avoid this hydraulic backup. Lawler Letter, id. A differential less than this minimum of 8 feet 4 inches exists on LAS units located on Holes 17, 16 and 11 of the proposed golf course. Id.
As to the potential for an LAS unit to clog from debris, Mount Kisco argues that given the inevitable presence of grass clippings, leaves and other matter likely to be found in stormwater runoff, it is not a question of if but when an LAS unit will clog. I.C., p. 60. This clogging will occur in both the swales and carbon units, slowing the rate of filtration and eventually resulting in the overtopping of the swales and the diversion of runoff from the LAS. M.P., p. 11. Moreover, dissolved organic compounds reaching the GAC chambers will cause biogrowth on the carbon medium. Since the proposed LAS provides no mechanism to backwash the GAC, clogging of the medium from the biogrowth will eventually occur. This will result in an increase in the hydraulic head needed to enable the unit to function properly and cause a backup of water throughout the LAS unit. Id., p. 12, Exhibit D, LMS Comments of December 10, 2001, pp. 4-5.
As to whether the GAC will remove pesticides to the levels asserted by the Applicant, that is, to or below the PQL for each pesticide, Mount Kisco argues that certain pesticides with low carbon adsorption coefficients, such as dicamba and trichlorfon, may pass through the carbon filter medium unimpeded. M.P., p. 12, Exhibit B, Lawler Letter of November 3, 1998, p. 11.
With respect to seeps along the escarpment on the east side of the property, Mount Kisco points out that one of the seeps flows toward Byram Lake at a rate of 3 gallons per minute which equates to more than 1.5 million gallons per year. M.P., p. 12; I.C., pp. 62-63 and 73-74. This seep could be a pathway by which untreated pesticide-laden water could enter Byram Lake. Id.
With regard to design limitations, Mount Kisco points out that the LAS is designed to capture only the first flush, or first one-half inch, of a 1-year 24-hour storm event. M.P., pp. 12-13. This is the LAS's design capacity and any other excess runoff will simply overtop and bypass the LAS. Id. Mount Kisco further points out that it cannot be assumed that this first flush will contain all the pesticides in the particular precipitation event's runoff. Accordingly, during precipitation events greater than a 1-year 24-hour storm, pesticide contaminated water will bypass the LAS and could potentially enter Byram Lake, even if the LAS functions precisely as designed. Id.; I.C., pp. 72-73 and 79.
In response to these concerns, the Applicant advances various arguments. First, as to the grading of the LAS units, it asserts that each will be designed so as to ensure proper hydraulics providing adequate head to drive water through the unit. I.C., p. 63. Moreover, in accordance with the permitting process, Department Staff will be required to specifically approve the design and grading of each LAS unit, as well as the unit when actually constructed. I.C., pp. 63-64. With respect to the overtopping of the swales during greater than 1-year 24-hour storm events, the Applicant reiterated that the LAS is only designed to capture the first flush of these latter storms, which flush contains "most if not all" of the pesticides present "on the surface of the land following the application of a pesticide." Id., pp. 64-65. Stormwater runoff in excess of the first flush will go through the balance of the BMP's on the site before flowing off site. Id. at 65.
Second, with respect to the possibility of the clogging of the LAS units, the Applicant argues that this is a monitoring and maintenance issue that is fully addressed in the permit. I.C., pp. 65-66. Third, as to seeps, the Applicant noted that there are three of them in the escarpment to the east of the site, two of which are hydraulically upgradient of the site. The third seep is 150 feet down the slope from the proposed location of the Hole 9 green and flows at about three gallons per minute. Although not an issue for a SPDES permit, but rather, a groundwater infiltration concern, the Applicant has agreed to the installation of a monitoring well at this third seep. I.C., p.67.
Department Staff concurred in the position taken by the Applicant and further pointed out that the draft SPDES permit required the Applicant to monitor the hydraulic performance of the of the LAS units and, in the case of a significant reduction in infiltration due to clogging, remove and replace the gravel center layer and underlying filter. I.C., pp. 68-69; See, also, Footnote 5, of Part I of draft SPDES Permit Number NY 026 4865, pp. 10-11.
Before discussing the design and functioning of the proposed LAS, the issue of seeps at the site should be addressed. Of the three seeps located at the site, two are hydraulically upgradient of the of proposed golf course. Only that seep east of the proposed Ninth Hole releases ground water from the site. While it is apparent that more than 1.5 million gallons of water annually will surface through this seep, there is no evidence in this record to suggest that this water will contain pesticides. Moreover, the seeps are not an issue for this SPDES permit application. The Applicant has, however, agreed to the installation of a monitoring well at the location of the seep which will be sampled on a periodic basis for the presence of pesticides. The protocols for this sampling are set forth in Section 3.2 of the Monitoring and Maintenance Plan (MMP) of June 2000. FEIS, Appendix C-5, p. 25. This proposed well and monitoring protocol is sufficient to the moment to provide for the protection of the waters of Byram Lake.
As to the proposed LAS, although a set of plans for the proposed project, consisting of 35 separate drawings, were received into the record at the Issues Conference, none of them depict the design of any of the proposed LAS units. Accordingly, the ability to discuss the adequacy of the design of a particular LAS unit is effectively precluded herein. Moreover, the record contains no enumeration or discussion of the criteria the Department will apply in making any determination as to the adequacy of the design of a particular LAS unit submitted to it for review.
To the extent that design flow parameters for the LAS are discussed, they are to be found in Appendix C-3 of the FEIS, Vol. IV Appendices. This, however, provides only a theoretical discussion based upon assumed inputs utilizing the MODFLOW computer model. These inputs assume, inter alia, a flow rate of 45 gpm; an hydraulic loading rate of the carbon contact chamber of 0.75 gpm/ft2, resulting in an empty bed contact time of 24 minutes; and a total mass of carbon of 4500 lbs., based on a carbon contact chamber 6 feet wide by 10 feet long by 2.5 feet deep and a GAC density of 31 lb/ft3. Moreover, the computer model assumes an estimated influent concentration of 236 ppb based upon the estimated pesticide applications and runoff depths projected for the 13.79 acres of Sub-Basin E1, which ultimately drains to the Kisco River.
While the MODFLOW model may serve as a useful paradigm in the design of the LAS units, a consideration of its assumed inputs underscores the need to field test the LAS. For example, given the high probability that the efficiency of the LAS swales will be diminished by clogging from debris inevitably present in storm runoff, no matter how strict a regimen of maintenance is observed, it is not reasonable to assume that a flow rate of 45 gpm will always be assured. A decrease in this rate of flow from clogging will clearly reduce the efficacy of the LAS unit requiring an increased hydraulic head to achieve the designed 45 gpm flow rate. However, with sufficient clogging, flow through the LAS unit could be completely halted with no increase in hydraulic head being sufficient to drive the system. At this point, a backup of runoff would occur resulting in the overtopping of the LAS swales with pesticide-laden stormwater completely bypassing the LAS unit.
Moreover, it is not clear whether an LAS unit for another area of the course can be designed relying essentially on a MODFLOW analysis based on the area and assumed runoff characteristics for Sub-Basin E1. For example, as set forth in DEIS Table IVC-41, Sub-Basins A1 and A2, which drain to Byram Lake, are 49.27 acres and 47.57 acres in size, respectively. In addition, for a 1-year 24-hour storm event, the runoff depth for Sub-Basin A1 is calculated to be 0.59 inches, and for Sub-Basin A2, to be 0.55 inches. Since Sub-Basin E1 has an area of 13.79 acres and a projected runoff depth of 0.41 inches for the same 1-year 24-hour storm event, it is apparent that the total volume of water draining through Sub-Basin E1 is far less than the volume of water draining through Sub-Basins A1 and A2. Further, given differences in topography and soil conditions in each of the course's sub-basins, it is not clear that any linear relationship can be established between the predicted Sub-Basin E1 parameters used in the MODFLOW model and the design of a larger LAS unit, or multiple LAS units, elsewhere on the course.
Finally, it is unclear as to how effective the GAC will be in removing pesticides under actual field conditions. The model suggested in FEIS Appendix C-3 assumes a reduction in the carbon medium's adsorbability of 70 percent. While such an assumption may be posited as being conservative, until the LAS unit is actually constructed and tested, the true level of reduction in the adsorbability of the GAC cannot be known.
Pursuant to the provisions of the Monitoring and Maintenance Plan (MMP) of June 2000, the Applicant argues that if the LAS fails and exceedances do occur, the SPDES permit provides the protocols and procedures pursuant to which the exceedance will be either corrected or the application of the particular offending pesticide discontinued. However, such a position fails to fully appreciate the fact that Byram Lake is currently uncontaminated by any pesticides at any level of concentration whatsoever. Any failure of the LAS in Sub-Basins A and B, which drain to Bryam Lake, can, and very likely will, result in pesticides entering the Lake. The corruption and degradation of this presently pesticide free sole source of drinking water, to any degree, by pesticides should be avoided.
With regard to design limitations, the LAS is designed only to capture the first flush of the runoff from a 1-year 24-hour storm event. Any amount of precipitation beyond this level may overtop the swales of the LAS, thus bypassing any treatment. However, the Applicant assumes that "most if not all" of the pesticides will be captured in this first flush. And, in fact, such would be the case regardless of the size of the storm event. Indeed, the DEIS states that "control of the 'first flush' is important to water quality management because it has been determined, based on historical data, that approximately 90 percent of all runoff-related pollutants are exported during low-intensity storms or the initial stages of a major storm." DEIS, p. IV-157. This assertion, however, should be contrasted with the Department's own position with respect to control of the "first flush" stated in the Division of Water's Technical and Operations Guidance Series (TOGS) 5.1.8, entitled, Stormwater Management Guidelines For New Development. According to this Departmental document, "from 70% to 95% of the contaminants in stormwater can be removed by capturing the first flush of runoff through infiltration practices." TOGS 5.1.8, p. 6. Using this document as guidance, it may well be that only 70 percent of the pesticide contamination present in the stormwater runoff of the 1-year 24-hour will be captured in the first flush and treated by the LAS, even if the LAS functions perfectly as designed. This would be a decrease in asserted efficiency of almost 25 percent and means that pesticide contaminants contained in runoff exceeding the one-half inch first flush would evade treatment by the LAS.
Ruling No. 2: Potential failure modes of the LAS, including, (1) whether the grading and elevation of the proposed swales are adequate to capture stormwater runoff and provide sufficient hydraulic head for the efficient operation of the LAS, (2) the potential for the swales and carbon chambers to clog with debris, and (3) whether the carbon filtration medium will remove pesticides to the levels asserted by the Applicant, as well as design limitations inherent in the LAS raise issues that are both substantive and significant and are, accordingly, adjudicable.
Issue A(2). Controlled Application of Pesticides Through Weather Forecasting
Positions of the Parties
As part of its Integrated Turfgrass and Pest Management Plan (ITPMP), the Applicant proposes to refrain from the application of fertilizers and pesticides 72 hours or less in advance of an anticipated precipitation event. FEIS, p. I-7; See, also, ITPMP, p.27, in FEIS Vol. IV, Appendix D. To assist course personnel in the prediction of such storm events, the Applicant has agreed to install a state-of-the-art weather station called a DTN Weather Center System.
Mt. Kisco argues that the prediction of storm events is highly uncertain, with many unforeseen storms occurring within 72 hours of a particular time certain. Accordingly, there can be no assurance that pesticides will not be applied within 72 hours of a precipitation event. M.P., p. 13. In support of its position, Mt. Kisco offered the opinion of a meteorologist, Stanley Wasserman, who asserted that current weather forecasting techniques are unable to reliably predict a local precipitation event within 72 hours of its occurrence. I.C., p. 150.
The Applicant agrees that the prediction of the weather is not an exact science, but points out that the Applicant's intent is to avoid, where reasonably foreseeable, the application of pesticides in advance of a storm event. While not perfect, the DTN Weather Center System will help in the prediction of such local storm events. I.C., pp. 150-152. Moreover, the Applicant points out that the LAS is designed to capture the first flush of a 1-year 24-hour storm event and that the design further assumes such a precipitation event occurring immediately after the application of all the pesticides listed in the draft SPDES permit. Id. at p. 152.
Department Staff pointed out that the SPDES permit will require the monitoring and analysis of precipitation at the at the site, particularly as discharged at the LAS outfalls. I.C., p. 153. The DTN Weather Center System, in their view, provides an additional level environmental protection. Id.
As part of the management plan for the proposed golf course, expressed in the ITPMP, the Applicant will be seeking to avoid the application of both fertilizers and pesticides to the turfgrass of the course when storm events are likely to occur within 72 hours after the planned fertilizer or pesticide application. ITPMP, p.27, in FEIS Vol. IV, Appendix D. To assist golf course maintenance personnel in predicting the likelihood of local precipitation events, the Applicant has agreed to install a DTN Weather Center System. While not an exact science, the DTN system should assist course maintenance personnel in avoiding the application of fertilizers and pesticides in advance of precipitation events anticipated within 72 hours after the application. Moreover, the LAS is designed upon a worst case assumption that a 1-year 24-hour storm event occurs immediately after all of the pesticides listed in the SPDES permit have been simultaneously applied to the course, a scenario that will probably never arise due, in part, to the fact that certain pesticides will only be needed at certain times of the year, and thus will never be applied at the same time as other pesticides.
Ruling No. 3: The Applicant's plan to utilize the DTN Weather Center System to assist golf course maintenance personnel in predicting the likelihood of local precipitation events within 72 hours after the planned application of either fertilizers or pesticides affords an additional layer of environmental protection. Its action in this regard is reasonable and protective of the environment, and local water quality, in particular. Accordingly, the Petitioners have not raised an issue that is either substantive or significant with respect to the controlled application of pesticides through weather forecasting and no adjudication of the matter is required.
Issue A(3). Proposed Effluent Limits in Permit
Positions of the Parties
With regard to the effluent limits in the proposed SPDES permit, while agreeing that the utilization of the practical quantitation limit (PQL) as the Enforceable Limit for each pesticide listed in the permit is reasonable, Mount Kisco expresses concern that PQLs are not the same as non-detect, that they may be variable from one laboratory to another, and that, indeed, some laboratories may be equipped with instrumentation sensitive enough to detect pesticides above their instrumentation's detection limits but below the established PQL. M.P., p. 14 and Exhibit D thereof, Comments of Lawler, Matusky & Skelly (LMS) dated December 10, 2001, pp. 7-9. To address this concern, Mt. Kisco suggests that the permit be modified to require that the Applicant only select those laboratories for effluent analysis that have the lowest possible instrument detection limits and PQLs, and that as PQLs achievable decline as a result of improved analysis techniques or new technologies, the Enforceable Limits in the proposed SPDES permit be revised downward to reflect these scientific advancements. Id., and I.C., pp. 86-87.
Angus Eaton of the Department Staff pointed out that there is a quantification level called a measurable detection level (MDL) which is the minimum detection level for a particular chemical that could be tested by a laboratory. However, because this level is so small, consistently testing for this level will yield only varying and unreliable results. Accordingly, the Department has set the effluent limits in the proposed permit at the more consistently achievable PQLs. I.C., pp. 87-88. Moreover, the proposed SPDES permit requires the Applicant to conduct an effluent specific MDL/PQL study for the pesticides listed in the permit which will be used by Department Staff in considering any future revision or modification of the permit. Id.
The Applicant agreed that it will be undertaking the MDL/PQL study referred to by Mr. Eaton and that it is the Applicant's understanding that the results could result in more stringent permit conditions. However, the Applicant argued that if such a study is to be repeated periodically in the future, as Mt. Kisco urged, it should be performed every five years, coincident with the term of the SPDES permit. I.C., pp. 89-90.
The Monitoring and Maintenance Plan (MMP) of June 2000 sets forth the PQLs for the various pesticides proposed for use on the golf course. Table 7-2, FEIS Vol. IV, Appendix C-5. These levels have been incorporated into the proposed SPDES permit as the enforceable effluent limits for the pesticides enumerated therein. The parties agree that this use of the PQLs in the permit is reasonable. Moreover, the Schedule of Compliance, at page 12 of the draft SPDES permit, obligates the Applicant to undertake an effluent-specific MDL/PQL study for the pesticides approved in the permit using gas chromatography or other appropriate method. The results of this study will be utilized by the Department when considering any modification or revision of the enforceable effluent limits in the permit. Further, the requirement that this study be repeated at five year intervals is reasonable since it provides an appropriate point in time from which to evaluate new changes and advances in laboratory analysis and technology, and is coincident with the renewal of the SPDES permit.
Ruling No. 4: The designation of the Enforceable Limit for the daily maximum concentration in the effluent as the PQL of each respective pesticide is reasonable and protective of the receiving waters. Moreover, as changes in technology and improvements in laboratory analysis evolve, these will be re-evaluated at five-year intervals. This review will ensure that the PQLs expressed in the SPDES permit will reasonably reflect then-current scientific analysis and techniques and be expressed at their lowest possible levels in any renewed permit. Accordingly, the concerns expressed by Mt. Kisco with respect to the proposed effluent limits in the draft SPDES permit have not raised an issue that is either substantive or significant, and no adjudication of the matter is required.
Issue A(4). Monitoring
Positions of the Parties
In its Petition, Mt. Kisco argued that the then-proposed SPDES permit should be revised "to require the use of continuous flow recorders and flow weighted composite samplers at each LAS and combined outfall." M.P., p. 15. Use of these instruments would provide "a more accurate estimate of the total annual phosphorous discharge at each outfall; a more representative sample of average actual water quality emanating from the site; a better estimate of infiltration; and a more reliable estimate of the presence of detectable levels of each pesticide at the LAS outfalls and the combined outfalls." Id., I.C., pp. 92-93.
In addition, Mt. Kisco argued that the proposed permit requirement of a monitoring program to measure the infiltration rate at each of the LAS infiltration swales, but limited in scope to the first 10 rainfall events after completion of the LAS exceeding 1/10 of an inch, was inadequate. Since further or other clogging of the swales could occur after the 10 precipitation events encompassing the monitoring program, affecting their respective infiltration rates, the monitoring program should be conducted throughout the life of the SPDES permit. According to Mt. Kisco, such a requirement would not be onerous, given the ready availability of data from the continuous flow monitors. M.P., p. 15, I.C., pp. 94-95.
Finally, Mt. Kisco objected to the requirement in Footnote 1(a) in the draft SPDES permit that LAS outfall sampling be undertaken only when at least 72 hours had elapsed since a prior precipitation event, resulting in a measurable discharge, was sampled. This would raise the possibility that sampling after a measurable precipitation event occurring on the first day of a new reporting month would not be required if the prior sampled measurable precipitation event occurred on the last day of the previous reporting month. To correct this anomaly, Mt. Kisco argued that a 24-hour elapsed time period should be substituted in lieu of the 72 hour period. I.C., pp. 97-101.
The Applicant agreed to use composite samples rather than grab samples, at Mt. Kisco's suggestion. I.C., p. 92. With respect to the monitoring of the infiltration swales, the Applicant pointed out that in accordance with, and in implementation of, the MMP of June 2000, piezometers would be installed in the LAS units to provide a continuous source of monitoring data as to the hydraulic performance of the LAS units. I.C., pp. 95-96. The Applicant also agreed to a 24-hour time period between potential sampling events, as requested by Mt. Kisco. I.C., p. 100.
Department Staff agreed to revise the language of the draft SPDES permit to reflect the understanding of the parties in these matters. I.C., pp. 93 and 96.
As a result of the forgoing exchange between the Parties at the Issues Conference, and pursuant to subsequent discussions, Footnote 1(a) in the draft SPDES permit was revised and now provides as follows:
1. Sampling and Monitoring:
a. The permittee shall conduct sampling at least once per month at each outfall (001-006) for which a precipitation event results in a measurable discharge. Individual outfall sampling shall be conducted during the first such precipitation event each month following the application of any of the pesticides identified in this permit, provided that at least 24 hours have elapsed since the previous measurable discharge that resulted from a precipitation event, and consist of separate flow weighted composite samples to be initiated within the first 30 minutes of discharge, with aliquots taken on an hourly basis for the duration of the storm or the first three (3) hours of discharge, whichever is less. Should no application of pesticides be planned or occur in a given month, the permittee remains obligated to sample the discharge from each outfall at least once during each month, provided that at least 24 hours have elapsed since a precipitation event that resulted in a measurable outfall discharge that was sampled. The results of these samples shall be recorded on the permittee's Discharge Monitoring Report (DMR) for purposes of compliance with the effluent limits. All samples shall be collected and analyzed in accordance with the procedures and methods listed in Section 2 of the permittee's June 2000 Monitoring and Maintenance Plan (MMP).
In addition, the infiltration study of the LAS units, embracing 10 precipitation events contained in the Schedule of Compliance at page 11 of the draft SPDES permit of October 30, 2001, was deleted.
Ruling No. 5: Inasmuch as the Applicant has agreed to the installation of piezometers at the LAS units allowing the continuous monitoring of the rate of infiltration through the LAS units, has agreed to composite samples and has agreed to a 24-hour interval between LAS outfall sampling events, and inasmuch as these changes are reflected to the extent necessary in the revised SPDES permit, the Petitioner's concerns with respect to monitoring have been reasonably resolved and, therefore, do not raise an issue that is either substantive or significant. Accordingly, no adjudication with respect to the issue of monitoring is required.
Issue A(5). Consequences of Exceedance
Positions of the Parties
Mt. Kisco took exception to the language of Footnote 2 of the draft SPDES permit, which provides as follows:
2. The permittee shall monitor and maintain the LAS units in accordance with Section 5 of the June 2000 MMP. Should one or more pesticides be detected in the discharge of one or more of the outfalls in excess of the effluent limits listed on pages 3 through 8 of this Permit, that pesticide or pesticides shall not be applied in the area or areas tributary to the outfall or outfalls where the exceedance or exceedances were found. The application of the pesticide or pesticides may only resume after an appropriate mitigation plan is submitted to and approved by the Regional Water Engineer at the address shown on page 20 of this Permit. The June 2000 MMP shall be used as the guideline for the appropriate action or actions proposed for approval.
This provision is inadequate, Mt. Kisco argued, since the exceedance of the permit limit for a particular pesticide in a particular LAS unit may be indicative of a general failure of all the LAS units with respect to that particular pesticide, notwithstanding the manifestation of the exceedance in only one LAS unit. Accordingly, upon confirmation of the exceedance, all application of the offending pesticide on the entire golf course should cease until appropriate mitigation measures have been approved by the Department and implemented by the Applicant. I.C., pp. 101-102.
The Applicant asserted that the proposed change was inappropriate and unreasonable. I.C., p.103. The overall goal is to maintain the turf. Since pesticides are to be applied to the course sparingly, in the first instance, the complete cessation of a particular pesticide may necessitate applying more of that pesticide once its use can be resumed to reestablish or regrow the course turf. I.C., pp. 106-107. Moreover, with respect to any exceedance, the Department could, in its discretion, initiate any enforcement action it deems appropriate to the circumstances. Id.
Department Staff concurred with the position taken by the Applicant but further pointed out that multiple exceedances for a pesticide in multiple LAS units could result in the cessation of a pesticide, if the exceedances were found to be facility wide. I.C., p. 107.
As Mt. Kisco correctly points out, 6 NYCRR 754.1(b) requires that "compliance with the specified permit provisions will reasonably assure compliance with applicable water quality standards." The standard articulated here is one of reasonableness. In light of the protocols and procedures set out in the MMP of June 2000, providing for the ongoing sampling methodology for the LAS units as well as their regular inspection both on a monthly basis and after major precipitation events, it is clear that the provisions of Footnote 2 are reasonable within the meaning of 6 NYCRR 754.1(b).
Ruling No. 6: Footnote 2 of the draft SPDES permit, in light of the MMP of June 2000, is reasonable within the meaning of 6 NYCRR 754.1(b) in requiring the cessation of the use of a pesticide in the area or areas tributary to the outfall or outfalls where the exceedance or exceedances of the pesticide were found, pending the approval and implementation of a mitigation plan. Accordingly, Mt. Kisco has not raised an issue with respect to the consequences of exceedance that is either substantive or significant, and, therefore, this issue need not be adjudicated.
Issue A(6). Abatement or Emergency Backup System
Positions of the Parties
In its Petition, Mt. Kisco argues that the language in the FEIS indicating the circumstances under which the Supplemental Standby Water Quality System will be implemented is vague and ill-defined. M.P., p. 17. Specifically, Mt. Kisco cites the following statement regarding the standby system, supplying emphasis to the terms it argues are unclear: The system will be activated if "there is a persistent and uniform failure of the entire LAS such that concentrations of pesticides are repeatedly detected at numerous LAS monitoring locations." FEIS, p. I-19. Mt. Kisco asserts that the SPDES permit should provide specific definitions for these terms. M.P., p. 17; I.C., p.108.
Moreover, Mt. Kisco argues that the proposed standby system is inadequate, in any event, and that a more appropriate solution would be the installation of carbon treatment at Mt. Kisco's new drinking water plant. M.P., p. 17; I.C., p. 109.
In the first instance, the Applicant argued that the standby supplemental system was not part of this SPDES permit application. I.C., p. 109. Secondly, the Applicant pointed out that it had offered to install carbon filtration at Mt. Kisco's drinking water plant and to pay the incremental operating costs of the installation, but Mt. Kisco rejected this proposal. I.C., pp. 110-111. Finally, the Applicant argued that the terms defining the events triggering the implementation of the standby system are sufficiently clear, but that if the Department believed the system should be implemented sooner, the Applicant would be open to discussing the matter with the Department. I.C., p. 112.
Department Staff advised that they would consider the standby system to be a part of the permit. I.C., p. 110. Moreover, they asserted that the draft SPDES permit provides appropriate environmental protection, especially since, under the terms of the permit, the application of an offending pesticide would be stopped even before implementation of the standby system. I.C., p. 117.
The Standby Supplemental Water Quality System is a part of the instant SPDES permit, being incorporated by reference by the clear language of the permit. In particular, Footnote 2 at page 10 of the draft permit, provides that "[t]he permittee shall monitor and maintain the LAS units in accordance with Section 5 of the June 2000 MMP." Moreover, the footnote concludes, "[t]he June 2000 MMP shall be used as the guideline for the appropriate action or actions proposed for approval." Section 5 of the June 2000 MMP provides the following:
"If any of the pesticides applied on the golf course are detected in 50 percent (or greater) of the LAS discharge points, applications of those pesticides will be stopped until such time that the appropriate actions are taken. If upon completion of maintenance and repair, any of the pesticides continue to be detected in 50 percent (or greater) of the LAS discharge points, for three consecutive sampling events, one of two actions will be taken: the superintendent will stop using the pesticides detected, or the standby supplemental water quality system will be promptly implemented. If the standby system is implemented, applications of all pesticides will be suspended during the set-up period, except for minimal, carefully controlled, spot applications. Upon full implementation of the standby system. [sic.] Pesticides applications and routine monitoring will continue." MMP of June 2000, Section 5.0, p. 31.
Moreover, although the more detailed description of the standby system contained in Appendix C-6 of the FEIS states somewhat more generally that "[p]ersistent and uniform failure [of the LAS] is defined as numerous pesticides detected in numerous LAS discharge points for three consecutive monitoring events," this language, when read in conjunction with the above statement from the June 2000 MMP, provides clear and unambiguous guidance as to the circumstances under which the standby system is to be implemented. FEIS, Appendix C-6, p. 1.
Finally, whether or not carbon filtration should be installed at the Mt. Kisco drinking water treatment facility at the expense of the Applicant is beyond the purview of this SPDES permit proceeding.
Ruling No. 7: Since, pursuant to the express terms of Footnote 2 of the draft SPDES permit directing that the provisions of Section 5 of the MMP of June 2000 are to be followed with respect to the maintenance of the LAS, and inasmuch as this section of the MMP discusses the Supplemental Standby Water Quality System, this standby system is incorporated into and made a part of this SPDES permit. Moreover, Section 5 of the MMP of June 2000 provides clear guidance as to the circumstances under which the standby system is to be implemented. Finally, the installation of carbon filtration by the Applicant at the Mt. Kisco drinking water treatment plant is not an appropriate subject for review at this permit proceeding. Accordingly, Mt. Kisco has not raised an issue with respect to the abatement or emergency backup system that is either substantive or significant, and, therefore, no adjudication of the issue is indicated.
B. Nutrient Contamination of Byram Lake
In its Petition, Mt. Kisco raises various issues with respect to the contamination of Bryam Lake by phosphorous and nitrogen entering the Lake from the site of the proposed golf course, in particular from drainage sub-basins A, B and C. These issues focus on three areas of concern, (1) existing flows from the site into Byram Lake, (2) proposed effluent limits in the permit, and (3) monitoring. M.P., pp. 18-21.
With respect to existing flows from the site into Byram Lake, Mt. Kisco challenged the assertion by the Applicant that nutrient loads of phosphorous and nitrogen after construction of the golf course for drainage sub-basins A, B and C, which drain to Byram Lake, would be less than pre-development levels as a result of proposed BMPs, and would be, in fact, 96 percent and 80 percent of these pre-development nutrient loads, respectively. M.P., p. 18; I.C., pp. 119-122; See, also, FEIS, p. I-7 and Vol. IV, Appendix C-2; DEIS, Tables IVC-35 and IVC-36, pp. IV-213 and 214. Mt. Kisco's expert, LMS, argued that, based upon their analysis, with the BMPs proposed in place, nutrient loads for phosphorous and nitrogen would be 60 to 100 percent higher than projected by the Applicant. M.P., Exhibits B and D, being, respectively, Lawler letter of February 23, 2000, p. 2 and Lawler comments of December 10, 2001, pp. 5-6. Moreover, Mt. Kisco argued that given the shallow depth to groundwater at the site, soil disturbance during construction will cause further nutrient contamination of Byram Lake. M.P., p. 19. In addition, since it cannot be assumed that the BMPs will perform as efficiently as intended, the draft permit should provide greater specificity as to when the BMPs are to be in place and how they are to be maintained. Id.
With regard to proposed effluent limits in the permit, Mt. Kisco pointed out that the draft permit under consideration at the Issues Conference contained no quantitative limit for nitrogen, and that to protect Byram Lake from further such nutrient impacts, a nitrogen limit should be imposed. I.C., p. 20.
As to the monitoring of nutrients, Mt. Kisco suggested that the draft permit should include a monitoring plan similar to that provided for pesticide discharges. Moreover, nutrient levels of Byram Lake should be monitored by the Applicant and if any exceedances are detected the appropriate abatement measures are to be undertaken by the Applicant at its expense. M.P., pp. 20-21.
The Applicant pointed out that while it is unusual for a SPDES permit to provide for the periodic monitoring of a nutrient, it is proposed in this case because of the already high nutrient levels in Bryam Lake, particularly phosphorous. I.C., p. 123. With regard to the determination of nutrient levels before and after construction, the Applicant pointed out that their analysis was done in accordance with Department approved methodologies and protocols. I.C., pp. 123-125. Moreover, the Applicant advised that it would agree to a permit condition providing for the quarterly sampling of phosphorous and nitrogen. I.C., 127.
Department Staff stated that they would be proposing permit language which would require the quarterly monitoring and reporting of both phosphorous and nitrogen and require the cessation of one or both of them if it appeared their respective annual budgets in the SPDES permit were going to be exceeded until such time as appropriate remedial actions could be implemented. I.C., pp. 125-127 and 129-131.
The pre-development nutrient loading analysis for the site was done in accordance with established Department guidelines. DEIS, p. IV-202. This pre-development analysis showed that the total nitrogen and phosphorous loads for drainage sub-basins A, B and C are 321.52 lbs/yr and 16.72 lbs/yr, respectively. DEIS, Table IVC-35, p. IV-213; FEIS, Vol. IV, Appendix C-2. These assumptions are unchallenged by Mt. Kisco's expert, LMS, and, indeed, are the starting point of their analysis. M.P., Exhibit B, Lawler letter of February 23, 2000, p. 2. The Applicant has agreed to report the total quantity of nitrogen and phosphorous discharged on a monthly basis and to report, on a quarterly basis, the total number of pounds of these nutrients discharged from the outfalls from sub-basins A, B, and C. Moreover the Applicant has agreed to quarterly interim limits for these nutrients from these outfalls. If the amount of either nitrogen or phosphorous discharged exceeds the quarterly interim limit, its use shall be curtailed or stopped in order not to exceed the next quarter's interim limit. However, in no event shall the total annual discharge of nitrogen or phosphorous from these three outfalls exceed 321.5 lbs/yr or 16.7 lbs/yr, respectively. Draft SPDES permit, p. 9 and Footnotes 7(b) and (c). The Applicant has proposed to control nutrients exiting the site through a series of BMPs including grassed infiltration swales, forested filter strips and detention ponds. FEIS, Vol. IV, Appendix C-2. Should these measures fail to be adequate to the circumstances, the strict nutrient monitoring mandated by the SPDES permit will provide sufficient warning as to this fact to allow appropriate remedial measures to be implemented. Moreover, given these permit requirements and in view of the fact that Byram Lake is already subject to extensive eutrophication, further sampling of the Lake for nutrient levels by the Applicant is unnecessary and unwarranted.
Ruling No. 8: In light of the strict monitoring and reporting requirements in the SPDES permit with respect to nitrogen and phosphorous loadings, the interim quarterly limits for the same, and the delineation of the steps to be taken by the Applicant to avoid an exceedance of the annual maximums of these nutrients, Mt. Kisco has not raised an issue with respect to the nutrient contamination of Byram Lake that is either substantive or significant, and, therefore, no adjudication of the issue is warranted.
C. Adequacy of Special Conditions - BMPs in Draft Permit and Low-Pesticide or No-Pesticide Golf Courses
Mt. Kisco acknowledged, in substance, that Special Condition 4 of the draft SPDES permit under consideration at the Issues Conference required the Applicant to identify BMPs established to minimize the potential release of pesticides, herbicides and fertilizers to the waters of the State, and that, in making this identification, the Applicant was to consider industry practices including other Integrated Turf Pest Management Plans (ITPMPs) as well as the Audubon Cooperative Sanctuary Program for Golf Courses. M.P., p. 21; Draft SPDES permit of October 30, 2001, p. 16; I.C., pp. 155-156. However, Mt. Kisco argued that the industry practices to be considered by the Applicant as enumerated in the permit did not include organic, chemical-free management practices. M.P., p.21. Organic golf courses have been built in various areas of the country and others are planned for nearby Suffolk County, including an 18 hole executive course in Huntington. M.P., pp. 21-22. Moreover, organic course management avoids the transport and storage of chemical pesticides and fertilizers, thus obviating the possibility of the unintentional release of these substances to the waters of the State. M.P., p. 22. The minimization or elimination of such releases to the environment comports with statutory, regulatory and Departmental guidance. M.P., pp. 22-23. In support of its position, Mt. Kisco called upon Neil Lewis, Esq., an environmental advocate with experience in promoting organic golf courses. I.C., pp. 157-160 and 165-181.
The Applicant asserted that the consideration of an organic course construction or maintenance alternative was not properly a matter for discussion at this SPDES permit proceeding. I.C., pp. 160-161. The Applicant did, however, acknowledge its obligation under the permit as well as the ITPMP to review and update its BMPs so as to reduce the range, frequency and rates of application of pesticides and fertilizers, to protect the environment. I.C., pp. 163-164.
While agreeing that the organic golf course alternative was not properly an issue for this proceeding, Department Staff pointed out that not only does the permit require that the Applicant identify established BMPs, a reference to Special Condition 4, but Special Condition 7 of the proposed permit requires the Applicant to annually review the BMP plan and modify it if the plan is determined to be inadequate. I.C., pp. 182-183.
During subsequent colloquy, Mt. Kisco challenged the adequacy of the language of Special Condition 4 and suggested that it should be revised to ensure that the proposed golf course is an organic one. Mt. Kisco agreed to submit a proposed revision of this permit condition for consideration. I.C., pp. 188-189. While pointing out that in its view issues relating to organic golf courses were appropriately raised and dealt with during the SEQRA process, Department Staff nevertheless agreed to consider any revision Mt. Kisco might propose. I.C., pp. 192-193.
The aforementioned revision was submitted by Mt. Kisco on January 2, 2002, and consisted of two proposed special permit conditions numbered 8 and 9, respectively. Letter of Michael B. Gerrard, Esq., dated January 2, 2002, Enclosure entitled "Proposed New Special Permit Conditions - Best Management Practices for insertion on Page 16 of 19, Seven Springs Golf Club SPDES Permit." Special Condition 8 would require the Applicant to refrain from the application of any "synthetic" pesticides or fertilizers unless the synthetic substance was on the National List of approved substances promulgated under the National Organic Production Program, 7 U.S.C. Sec. 6517 and 7 C.F.R. Sec. 205 Subpart G. Id. The proposed condition defines a "synthetic" substance as "a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal, or mineral sources, except that such term shall not apply to substances created by naturally occurring biological processes." Id. Proposed Special Condition 9 would allow the application of synthetic pesticides and fertilizers under certain conditions including, inter alia, a showing that despite the diligent use of organic techniques unsatisfactory playing conditions have resulted, or that the LAS has proven to be effective. Id.
As originally proposed in the draft SPDES permit under consideration at the Issues Conference, Special Conditions 4 and 7, at page 16 of the permit, provided as follows:
- The permittee shall identify Best Management Practices that have been established to minimize the potential release of pesticides, herbicides, and fertilizers to the waters of the State. In selecting appropriate BMPs, the permittee shall consider industry practices such as Integrated Turfgrass and Pest Management Plans (ITPMPs), the Audubon Cooperative Sanctuary Program for Golf Courses (ACSP, administered by the [sic.] The Audubon Society of New York State, Inc.), chemical application rates and methods, employee training, inspections and records, preventative maintenance, good housekeeping, materials compatibility and security, and structural measures such as stormwater retention ponds, constructed wetlands, and erosion/sediment control devices and practices where appropriate.
- The BMP plan shall be reviewed annually and shall be modified whenever: (a) changes at the facility materially increase the potential for significant releases of toxic or hazardous pollutants, (b) actual releases indicate the plan is inadequate or (c) a letter from the Regional Water Engineer highlights inadequacies in the plan.
Since the Issues Conference and the submission of the proposed new Special Conditions 8 and 9 by Mt. Kisco, Department Staff has revised Special Conditions 4 and 7 which now, at page 18 of the proposed SPDES permit, provide as follows (emphasis supplied):
4. The permittee shall identify Best Management Practices that have been established to minimize the potential release of pesticides, herbicides, and fertilizers to the waters of the State. In selecting appropriate BMPs, the permittee shall consider industry practices such as Integrated Turfgrass and Pest Management Plans (ITPMPs), chemical application rates and methods, use of nonsynthetic or "organic" fertilizers and pesticides, employee training, inspections and records, preventive maintenance, good housekeeping, materials compatibility and security, and structural measures such as storm water retention ponds, constructed wetlands, and erosion/sediment control devices and practices where appropriate. The permittee shall make every attempt to meet the substantive requirements of the Gold Signature certification program under the Audubon Cooperative Sanctuary Program for Golf Courses (ACSP , administered by the [sic.] The Audubon Society of New York State, Inc.).
7. The permittee shall review the BMP plan annually and shall modify the plan whenever: (a) changes at the facility materially increase the potential for significant releases of toxic or hazardous pollutants, (b) actual releases indicate the plan is inadequate or (c) a letter from the Regional Water Engineer highlights inadequacies in the plan.
These changes made by Department Staff in substance embrace and fairly address the consideration of the organic golf course alternative sought by Mt. Kisco, and are sufficient to address the concerns raised in the instant SPDES permit proceeding. Moreover, the pesticide free or organic golf course alternative was examined during the now completed SEQRA process in this matter and for the reasons articulated therein by the Applicant, found not to be feasible or practicable for the site and, even if feasible, to be less protective of the environment than the Applicant's proposal. FEIS, p. III-45; See, generally, FEIS, pp. III-45 to III-47 and Comment D23 and Response D23 thereto, pp. IV-287 to IV-291.
Ruling No. 9: In view of the revisions made by Department Staff to Special Conditions 4 and 7 embracing and addressing the organic golf course alternative to the extent reasonably appropriate to the instant SPDES proceeding, and in view of the fact that the pesticide free or organic golf course alternative was examined during the SEQRA process which has been completed, Mt. Kisco has not raised an issue with respect to the adequacy of the Special Conditions in the draft SPDES permit that is either substantive or significant, and, therefore, the issue need not be adjudicated.
D. Other Stormwater Management Issues
Positions of the Parties
Mt. Kisco points out that the phased construction plan for the proposed golf course provides that during construction, soil exposure would be limited to no more than five acres on slopes of 25 percent incline or steeper, and that at no time would more than a total of 25 acres be exposed without temporary stabilization. M.P., p. 24; FEIS, p. II-104. Moreover, the construction plan suggests that no more than 8.7 contiguous acres will be exposed at any one time during construction without temporary stabilization measures in place. Id. Mt. Kisco argues that these proposed parameters for soil exposure during construction exceed the Department's recommendations. M.P., p. 24; I.C., pp. 132-133. Specifically, Mt. Kisco cites Section II(E)(1) of Appendix E of the Department's General Permit for Storm Water Discharges Associated with Industrial Activity from Construction Activities, Permit No. GP-93-06, which provides: "1. Exposure Restrictions: No more than 5 acres of unprotected soil should be exposed at any one time. Previous earthwork should be stabilized in accord with approved design standards and specifications ... before additional area is exposed. (Site factors including topography, soil erosion potential, proximity to wetlands and water courses may require limiting the amount of raw earth that can be exposed at any one time to less than 5 acres.)" Failure to adhere to these recommendations increases the potential for erosion during construction and the possibility that soils will be carried into Byram Lake. M.P., p. 24.
In addition, Mt. Kisco argues that the plans submitted by the Applicant appear to permit the discharge of untreated stormwater directly into Wetland G, located adjacent to Hole 10, and that this is not an accepted practice according to Department guidelines, specifically, Section II(4)(B)(2)(a) of Appendix D of the aforementioned General Permit. M.P., p. 26; I.C., pp. 139-140.
The Applicant asserted that the Department guidelines referred to by Mt. Kisco were not inflexible rules, but rather guidance on sound management practices to be applied as appropriate to the particular circumstances. I.C., pp. 133-134. Moreover, the Applicant pointed out given constraints such as the weather, exposing less than five acres at a time would inordinately prolong the construction process. Id. In any event, according to the Applicant, the Department guidelines cited were reviewed with Department Staff at the time the construction and erosion plans were being developed. Id. In addition, the erosion sedimentation control plan proposed by the Applicant during construction is designed to manage the runoff from a 100-year storm. I.C., p. 138. With respect to untreated stormwater discharging to Wetland G, the Applicant pointed out the plans for the course that provide for a sand filter to process stormwater flows draining to the wetland. I.C., pp. 141-145.
Department Staff noted that the forgoing discussions which involve stormwater runoff during construction and the applicability of the stormwater General Permit conditions are not proper subjects for this draft SPDES permit proceeding, but are being considered under a separate Department review. I.C., pp. 135-138.
While the Department Staff is indeed correct that these construction stormwater issues are not appropriate for consideration in this SPDES permit proceeding, and this fact is dispositive of these issues, certain comments regarding them should be made in passing.
First, Appendix E of the aforementioned stormwater general permit, is a restatement of the Department's Division of Water's Technical and Operational Guidance Series (TOGS) 5.1.10, entitled, Erosion and Sediment Control Guidelines for New Development. The cover memorandum to TOGS 5.1.10, dated April 1991, and submitted by the Director of the Division of Water, states that these guidelines "provide guidance on sound management practices, but are not fixed and inflexible rules to be applied in reviewing erosion control plans without considering the particular facts and circumstances of a particular project." This precise language is also expressed in Section II of Appendix E, entitled, Guidance.
Second, the Applicant has proposed a comprehensive Soil Erosion and Sediment Control Plan to be implemented during construction of the proposed golf course. See, FEIS, pp. II-110 to II-123. Pursuant to the plan, during construction, sediment-laden stormwater runoff would be captured by temporary swales and directed to temporary sediment basins. Id. at p. II-110. These temporary swales and sediment basins would be designed to manage runoff for all storm events, including a 100-year storm. Id.
Third, as shown on Site Plan S-7A, entitled, "Storm Drainage Plan (Sheet 1 of 2)", stormwater runoff entering Wetland G will first pass through a sand filter. See, DEIS, Exhibit 4D-1, p. IV-255 for a depiction and location of Wetland G.
Ruling No. 10: The stormwater issues raised herein by Mt. Kisco are not properly subjects for this SPDES proceeding. However, in passing, it is to be noted that the Department's above-referenced guidelines are not rigid and inflexible, but provide guidance in the effective management of stormwater events that must be appropriately adapted to the particular circumstances. Moreover, the Applicant has proposed a Soil Erosion and Sedimentation Control Plan which, while subject to other Department review, for purposes herein, appears will be protective of local water quality during construction of the golf course. Accordingly, with respect to other stormwater management issues, Mt. Kisco has not raised an issue that is either substantive or significant, and, therefore, adjudication is not warranted.
E. Application for Water Quality Certificate under Clean Water Act Section 401
Mt. Kisco argued that based upon the issues it had raised in its Petition, a question as to the Applicant's ability to comply with applicable laws and regulations had been raised. According to Mt. Kisco, the Applicant's failure to so comply would mean that the Applicant would not be able to demonstrate compliance with Sections 301-303, 306 and 307 of the Clean Water Act as implemented by Department regulations and 6 NYCRR 608.9. M.P., pp. 26-28; I.C., pp. 226-227. Thus, the granting of the water quality certification is a function of the resolution of the issues raised in the petitions of both Mt. Kisco and the Town of Bedford.
Mt. Kisco also raised concerns as to the Applicant's proposal to fill and alter certain wetlands at the site located within the New York City Watershed east of the Hudson River and the lack of a pollutant load analysis for Fecal Coliform Bacteria (FCB) in the FEIS. M.P., pp.26-27. However, with respect to the wetlands issue, Mt. Kisco agreed that this was an issue for the U.S. Army Corps of Engineers and the New York City Department of Environmental Protection (NYCDEP) while the FCB analysis was an issue for the NYCDEP. Neither of these issues needed to be addressed in this SPDES permit proceeding, Mt. Kisco stated. I.C., p. 227.
Ruling No. 11: The granting of a water quality certification pursuant to 6 NYCRR 608.9 in this matter is a function of the Applicant's ability to demonstrate compliance with applicable federal and State laws and regulations. The requirement of this certification, however, in itself, does not raise an issue that is either substantive or significant, and, therefore, no adjudication is warranted.
F. Impacts on Historic and Archaeological Resources
Positions of the Parties
Mt. Kisco pointed out that pursuant to Section 14.09 of the New York State Parks, Recreation and Historic Preservation Law (PRHPL), before approving a SPDES permit in the instant matter, the Department was required to consult with the Commissioner of Parks, Recreation and Historic Preservation concerning the impact the proposed golf course may have on any historic, architectural, archaeological, or cultural property that is either listed or eligible to be listed on the State register of historic properties. Moreover, Mt. Kisco asserted that should the proposed golf course have such impact, the Department is obligated to fully explore feasible and prudent alternatives to the proposed project, as well as a consideration of feasible and prudent plans for the mitigation of such impact. M.P., pp. 28-29; I.C., pp. 196-197.
Mt. Kisco further argued that the Applicant's consultant had conducted inadequate surveys and gathered insufficient information to determine if the site contained significant historical and archaeological resources and had failed to properly evaluate the information it did have with respect to historical and archaeological resources. M.P., p. 30; I.C., pp. 203-213.
Finally, Mt. Kisco argued that the SEQRA process in this matter, which culminated in the adoption of the FEIS in November 2000, was to some degree tainted because a letter dated February 16, 2000, from the New York State Office of Parks, Recreation and Historic Preservation (NYSOPRHP), suggesting that the proposed golf course project would likely receive an adverse impact determination from that office, was not disclosed to the co-lead agencies prior to the adoption of the FEIS, thus precluding further comment by the public on the matter. M.P., pp. 30-31; I.C., pp. 202-203 and 221-226.
The Applicant, acknowledging the historic significance of the site as the former Eugene Meyer estate, and that the mansion at the site was designed by the renowned architect, Charles Platt, pointed out that its principal has committed to the restoration of the mansion and to maintaining the site as a whole and not dividing it into smaller residential parcels. I.C., pp. 213-214. Moreover, the Applicant has directed that the design of the course incorporate as many historic features of the site as possible. Id. The Applicant also recounted the extensive analysis done at the site including the survey of buildings and other structures on the site and their historic significance, as well as the excavation program of test pits undertaken to discover the possibility of pre-historic artifacts that might indicate the use of the site by Native Americans. I.C., pp. 215-216. Moreover, with the Department's knowledge, the Applicant stated that it was currently in negotiations with the NYSOPRHP and was close to finalizing a memorandum agreement addressing and mitigating any adverse historical impacts at the site as a result of the proposed project. I.C., pp. 216-217. Finally, the Applicant argued that this issue, as raised by Mt. Kisco, was beyond the scope of the instant SPDES proceeding. I.C., pp. 219-220.
Department Staff concurred in the remarks by the Applicant and reiterated that these concerns raised by Mt. Kisco as to historic and archaeological matters were not issues for this SPDES permit proceeding. I.C., pp. 220-221. Moreover, Department Staff stated that the Department would defer to the determination the NYSOPRHP in these matters, as required by 6 NYCRR 621.3(a)(7).
While the Applicant and Department Staff are correct in asserting that the concerns raised by Mt. Kisco with respect to impacts on historic and archaeological resources are not germane to this SPDES proceeding, having been the subject of a now completed SEQRA review, some discussion of the matters raised is appropriate.
In the first instance, the record indicates that the Applicant undertook an extensive survey and evaluation of the historic and archaeological impacts of the proposed project. Section IV(J) of the DEIS contains an extensive discussion of historic and archaeological resources at the site and examines existing conditions, potential impacts, and mitigation measures. DEIS, pp. IV-521 to IV-547. Moreover, the details of and methodologies employed in this analysis are to be found in Appendix P of Volume 5 of the DEIS and comprise more than 300 pages.
Second, Mt. Kisco asserts that the Applicant's failure to disclose the NYSOPRHP letter of February 16, 2000, which suggests that the proposed project would probably receive an adverse impact determination from that office, did in some way deprive the public of its right to provide informed comment on the issue of the historical and archaeological impacts of the project during the SEQRA process. This February 16, 2000, letter is in apparent response to a request by the Applicant for comment on its proposed project and requests certain additional archaeological information of the Applicant's consultant. To the extent relevant to our discussion, it provides in the third paragraph as follows:
"Although we can not offer our formal opinion on the proposed work until the requested archeological information has been forwarded, we can predict what will likely be our determination once all project issues have been addressed: Due to the removal of contributing structures and the heavy modification of the existing estate landscaping, the project will likely receive an adverse impact determination from our office. However, we are cognizant of the fact that a golf course can be a very appropriate use for this type of property. After we have had an opportunity to review additional project information we will be able to recommend potential project direction and resolution." (Emphasis supplied.)
The Executive Summary of the FEIS also discusses the historic features of the site and refers to a February 1, 2000, request by the Applicant to NYSOPRHP for its statutorily required determination as to the eligibility of structures on the site for inclusion on the State or federal registers of historic places. While this is perhaps the request referred to in the NYSOPRHP letter of February, 16, 2000, the Executive Summary goes on to state: "The applicant is discussing with NYSOPRHP personnel possible mitigation for any impacts from the project on historic resources at this site and will enter into a written agreement regarding such mitigation if NYSOPRHP deems that appropriate." FEIS, pp. I-4 to I-5. Moreover, these discussions between the Applicant and NYSOPRHP are also addressed in the Comments and Responses section of the FEIS, particularly Comments K34, K35 and K36, and Responses K34, K35 and K36, respectively thereto. Since it is clear that the fact of these discussions and pending agreement was disclosed in the proposed FEIS prior to its adoption in November 2000, it is also clear that the co-lead agencies had notice of these discussions and agreement prior to their act of adopting the FEIS. It cannot be said that they or the public were misled, as asserted by Mt. Kisco. M.P., p. 31.
As stated by Department Staff, 6 NYCRR 621.3(a)(7) requires that the Department defer to the NYSOPRHP for the determination to be made under Section 14.09 of the PRHPL. Moreover, the impacts of the proposed project on historic and archaeological resources were examined during the SEQRA process. Accordingly, they are not proper issues for review during this SPDES proceeding.
Ruling No. 12: Inasmuch as the impacts of the proposed project on historic and archaeological resources were examined during the SEQRA process, and since 6 NYCRR 621.3(a)(7) requires that the Department defer to the NYSOPRHP for the determination to be made under Section 14.09 of the PRHPL, Mt. Kisco has not raised an issue that is either substantive or significant with respect to the proposed project's impacts on historic and archaeological resources at the site and, therefore, adjudication is not warranted.
SUMMARY AND CONCLUSION
In summary, as embraced by Rulings 1 and 2 herein, the Petitioners have raised issues that are both substantive and significant with respect to the lack of performance data for the proposed LAS, potential failure modes for the LAS and limitations inherent in its design.
The proposed LAS, if it functions as the Applicant anticipates, would constitute a significant and state-of-the-art process to be employed in the protection of water quality. Indeed, it would be a paradigm to be emulated at other golf courses and a myriad of similar applications where the possible off-site migration of pesticides from stormwater runoff threatens local water quality. The Applicant is to be commended for its proposal and potential design.
The Department Staff is also to be commended for proposing a SPDES permit that is exceptionally clear and well drafted, and gives due consideration to the concerns of the community while at the same time aiming to be fully protective of the receiving waters and the sole source of drinking water supply utilized by the residents of the Village and Town of Mt. Kisco, as well as residents of the Town of Bedford.
However, as well deserved as these kudos are, they are for naught if the LAS does not, in fact, function as designed and remove pesticides from stormwater runoff to the level of efficiency claimed. The proposed SPDES permit effluent limits, no matter how restrictive, are but a sham if the proposed LAS does not work. To merely provide extensive procedures and protocols to be followed in the case of failure of the LAS is not sufficient to the moment, for upon that scenario, pesticide-laden stormwater would be allowed to enter Byram Lake inexorably corrupting its currently pesticide free waters while the problem of the LAS's failure is diagnosed and corrected. Not only is such a position intolerable to the people of the Village and Town of Mt. Kisco and the Town of Bedford, it is contrary to the spirit and intent of the environmental laws and regulations of this State and is precisely why 6 NYCRR 754.1(b) requires that a permit determination be based, not on engineering theory and design alone, but upon actual empirical data developed in the field. The LAS should be pilot tested as designed and the results of that testing used to modify its design, as required.
While not exhaustive of the possibilities, this pilot testing could be accomplished in two ways: First, the Applicant could construct an LAS unit at another golf course it owns. With this option, however, questions such as to the similarity of the topography and soils, annual precipitation levels and type of pesticides applied as compared to the Seven Springs site could prove problematic. A second option would be to revise the phased construction plan for the course allowing first for the construction of those holes which drain to the Wampus River. The LAS units installed in the Wampus basin would effectively be a pilot test for the design and construction of the LAS units serving those holes which drain to the Kisco River, which would constitute the second phase of the course's construction. This would allow for a second round of pilot testing before the final phase of construction which would embrace those holes and LAS units draining to Byram Lake.
While any decision in this matter must await the outcome of any appeals of this Ruling, should a pilot test be required, it may be more appropriate to postpone any adjudicatory hearing on issues of potential failure modes and design limitations until after the pilot testing is complete at least in part, and it may well be that this latter adjudicatory hearing could be obviated depending upon the results of the pilot testing.
Following the appeals herein and their resolution, should the parties so desire and if appropriate, the Office of Hearings and Mediation Services would be available to mediate an agreement among the parties as to pilot testing and phased construction of the proposed course.
As provided in 6 NYCRR 624.8(d)(2), during the course of a hearing, a ruling by the Administrative Law Judge to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis. While such appeals are to be filed with the Commissioner in writing within five days of the disputed ruling as required by 6 NYCRR 624.6(e)(1), this time frame may be modified by the ALJ, in accordance with 6 NYCRR 624.6(g), to avoid prejudice to any party.
Accordingly, any appeals in this matter must be received at the office of Commissioner Erin M. Crotty, 625 Broadway, Albany, New York 12233, no later than the close of business on September 27, 2002. Moreover, responses to the initial appeals will be allowed and such responses must be received as above no later than the close of business on October 11, 2002.
The appeals and any responses sent to the Commissioner's Office must include an original and two copies. In addition, one copy of all appeal and response papers must be sent to me and to all other persons on the enclosed Service List at the same time and in the same manner as to the Commissioner. Service of any appeal or response thereto by facsimile transmission (FAX) is not permitted and any such service will not be accepted.
Appeals and any responses thereto should address the ALJ's rulings directly, rather than merely restate a party's contentions and should include appropriate citations to the record and any exhibits introduced therein.
Dated: Albany, New York
August 23, 2002
New York State Department of
Richard R. Wissler
Administrative Law Judge
To: Stephen L. Kass, Esq.
Carter, Ledyard & Milburn
2 Wall Street - 13th Floor
New York, New York 10005-2072
Vincent Altieri, Esq.
NYSDEC Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696
Michael B. Gerrard, Esq.
Arnold & Porter
399 Park Avenue, 34th Floor
New York, New York 10022-4690
Joel H. Sachs, Esq.
Keane & Beane, P.C.
One North Broadway
White Plains, New York 10601