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Seven Springs, LLC - Supplemental Ruling, September 2, 2003

Supplemental Ruling, September 2, 2003

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

SUPPLEMENTAL RULING ON ISSUES

DEC Application No. 3-5599-00041/00001

September 2, 2003

SUMMARY OF RULINGS

On August 23, 2002, I issued a Ruling on Issues and Party Status in this matter identifying 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.

In the Ruling of August 23, 2002, I identified two issues for adjudication. First, finding that no performance data as to the efficacy of the proposed Linear Adsorption System (LAS) had been available to Department Staff at the time this permit application was under consideration, I ruled that this had raised an issue that was substantive in that the lack of such data precluded the Department from making the required determination under Section 754.1(b) of 6 NYCRR that compliance with the provisions of the draft SPDES permit would reasonably assure compliance with water quality standards, and was significant in that failure to make such a determination would result in denial of the permit. I directed that LAS performance data be compiled and, if necessary, the Issues Conference be reconvened for its receipt and evaluation. Second, I found that potential failure modes of the LAS, including, (1) whether the grading and elevation of the proposed swales were 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 would remove pesticides to the levels asserted by the Applicant, as well as design limitations inherent in the LAS, raised issues that were both substantive and significant and thus, adjudicable. For the reasons that follow, I find that the draft permit condition proposed by Department Staff, as amended, requiring a pilot test of the LAS pursuant to a defined protocol will adequately address the issues and concerns raised by these two Rulings, and that no substantive and significant issue is thus now raised requiring adjudication. Accordingly, I recommend that the SPDES permit in this matter be granted, with the special condition requiring pilot testing of the LAS proposed by Department Staff, as amended.

BACKGROUND

The parties appealed the Issues Ruling of August 23, 2002, to the Commissioner pursuant to 6 NYCRR 624.8(d)(2). These appeals have been held in abeyance pending the outcome of this supplementary proceeding.

By letter dated March 26, 2003, Department Staff advised me that the Applicant had developed a pilot study of the LAS in accordance with my direction in the Issues Ruling. Upon their review of the proposed pilot study, Department Staff amended the draft permit in this matter by adding a special condition requiring implementation of the pilot study and, except as required for the purposes of the pilot study only, prohibiting the Applicant from applying any pesticides, nutrients or other chemical compounds to the proposed golf course until the Department had confirmed in writing that the LAS, as tested, had met design standards. In order to allow the parties the opportunity to comment on the proposed special condition, Department Staff requested that I reconvene the Issues Conference. The special condition proposed by Department Staff provides as follows:

Applicant shall complete the LAS Pilot Study which is annexed to this permit as Exhibit "A." Except as shall be required for completion of the LAS Pilot Study, and in full conformance therewith, Applicant is hereby prohibited from applying herbicides, fungicides, pesticides, lawn treatments, turfgrass treatments, fertilizers, chemicals or compounds, to the vegetated areas of the site until DEC has reviewed all required pilot study data and engineering certifications and confirmed in writing that the data and engineering certifications demonstrate that the LAS, as tested, has met design standards.

The parties were asked to set forth, by letter, their respective positions regarding the proposed special permit condition. The Issues Conference was reconvened on April 23, 2003, at the Town of North Castle Town Hall, North Castle, New York. The Applicant was represented by Stephen L. Kass, Esq., of the law firm of Carter, Ledyard & Milburn, 2 Wall Street, New York, New York 10005-2072. The Department Staff was represented by Steven Goverman, Esq., Assistant 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 (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 (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 Proposed Pilot Test

The pilot test proposed by the Applicant was prepared by Malcolm Pirnie, Inc., of White Plains, New York, in February 2003, and is entitled Linear Adsorption System (LAS) Pilot Test Protocol - Seven Springs Golf Course. (Exhibit E.) This protocol "describes the LAS design, the range of conditions to be simulated during the pilot test, field monitoring activities such as hydraulic performance and sampling, field maintenance activities such as Granular Activated Carbon (GAC) Chamber and trench maintenance, analytical methods, and quality assurance/quality control procedures." (Exhibit E, p. 1.)

Since the Issues Conference, the design of the proposed golf course as well as its overall appearance has been revised. As to the design, through tee and green placement, the layout of Holes 14 through 17 has been reversed. According to the Applicant, this redesign lessens the environmental impact of these holes, particularly wetlands impacts associated with Hole 14. (Transcript of Supplementary Issues Conference of April 23, 2003, pp. 15-16, hereinafter abbreviated TS and page number.) As to its overall appearance, a more rustic or natural look is being sought, as opposed to a fully maintained appearance, by reducing the amount of turf that will be regularly maintained. (TS, p. 17.)

The pilot test will be conducted on Holes 15 and 16, which will be constructed in their final form to ensure that the LAS is tested under conditions simulating normal operation. (Exhibit E, p. 1.) Holes 15 and 16 are located entirely within the Wampus basin and the test will not impact either the Byram Lake or Kisco River drainage basins. Two detention ponds will also be constructed, one to the east of the green for Hole 16 and one to the north of the green for Hole 15, which will allow for the testing of the LAS under two different configurations. (Exhibit E, p. 1 and Figure 2; TS p. 24.) In one configuration, stormwater runoff will be collected in a detention pond and then conveyed to a GAC contact chamber, while in the other, stormwater runoff will be directed by grassed swales to an infiltration trench and then conveyed to a GAC contact chamber. (TS pp. 24-25.) The dimensions of the LAS system components have been increased to allow for the capture of the first 1 inch of a precipitation event, the original design allowing the capture of only the first ½ inch. While the design of swales and infiltration trenches has changed, the nutrient removal capability of these components has not. (TS, pp. 25-26.)

The pesticides, nutrients and all other chemicals and compounds authorized in the proposed SPDES permit will be applied to the test area which will then be subjected to various simulated precipitation events including a 1 year, 2 year and 10 year storm event, equivalent to rainfall depths of 2.8 inches, 3.5 inches and 5.0 inches, respectively. (TS, pp. 31-37; Exhibit E, Table 3; Exhibit K, p. 2.) These three simulated events will each be run twice, once while the moisture content of the test site soils is low, and once with the soils saturated prior to the testing. In addition, a sudden downpour event will be simulated, involving the application to the test site in a 2 hour period of that volume of water associated with a 1 year storm, or 2.8 inches of water. (Exhibit E, p. 14.) Thus, a total of seven precipitation events will be simulated.

The monitoring protocols to be implemented during the pilot test will allow for the collection of the empirical data upon which the performance of the LAS can be evaluated. Specifically, the pilot test data will permit an evaluation of the hydraulic performance of the LAS and GAC contact chambers, the pesticide removal efficiency of the LAS, and identify potential operational and maintenance concerns. (Exhibit E, pp. 4 and 13-25.) All sampling events will utilize state-of-the-art sampling equipment and all samples will be collected, safeguarded and tested pursuant to standard laboratory protocols and chain of custody procedures. (Exhibit E, pp. 26-31.) The results of any laboratory tests will be certified by the laboratory conducting the test. (TS, p. 48.)

At the conclusion of the pilot test, a report of the results will be prepared and provided to the Towns of North Castle and Bedford, the Village and Town of Mount Kisco, and the Department. The report will include all supporting documentation for each sampling event. (Exhibit E, p. 31.) The report will bear a certification by a Professional Engineer, licensed in the State of New York, stating that the pilot test was conducted pursuant to the procedures articulated in the Pilot Test Protocol and that the data contained therein is accurate.

The Towns of North Castle and Bedford and the Village and Town of Mount Kisco will be afforded the opportunity to file written comments regarding the pilot test with the Department. (TS, p. 67.) Thereafter, and in accordance with the proposed permit condition, Department Staff will determine, based upon the pilot test report and its supporting data, the laboratory and engineer's certifications, and upon due consideration of any comments received from the parties, whether the LAS, as tested, has met design standards. Such determination by Department Staff shall be in writing and provided to the Applicant.

Positions of the Parties

Applicant

The Applicant accepted the special permit condition proposed by Department Staff and asserted that the rigorous testing to be invoked pursuant to the pilot test protocol will provide Department Staff with the very kind of empirical data it needs in order to make a fully informed judgment as to the efficacy of the LAS. (Position Letter of the Applicant, dated April 18, 2003, Exhibit B, p. 2; TS, p. 39.) Moreover, the Applicant acknowledged that, pursuant to the express terms of the special permit condition, it would be prohibited from applying any pesticides or nutrients to the balance of the golf course should the LAS, as tested, fail to function at the level required to meet the effluent limits mandated in the SPDES permit. (Exhibit B, p. 1.) With respect to the pilot test results, the Applicant asserted that these should be provided to Department Staff for its review and action only, and that it was not necessary to reconvene the Issues Conference for a review by the ALJ and a determination as to whether they constituted such "other available information" within the meaning of 6 NYCRR 754.1(b). This interpretation, the Applicant maintained, satisfied the concerns raised in the Issues Ruling of August 23, 2002. (TS, pp. 39-40.) Moreover, with respect to potential design flaws in the LAS, the Applicant argued that the pilot test would reveal any such shortcomings and that the system would have to be designed properly in order to function properly, the failure to do so precluding the application of any pesticides or nutrients to the golf course. (TS, pp. 96-98.) Thus, in the Applicant's view, the two issues identified for adjudication by the ALJ were now satisfied and the SPDES permit should be issued.

Staff

Department Staff asserted that requiring the pilot test as a special permit condition would assure compliance with regulatory standards. (TS, p. 43.) In effect, and in light of the language of the special permit condition proposed by them, its argument was that any exceedance revealed in the pilot test would be indicative of the failure of the LAS, which, pursuant to the express terms of the special permit condition would preclude the Department from confirming that the LAS had met design standards. Accordingly, no pesticides, nutrients or other chemicals or compounds could be applied to the vegetated areas of the golf course, assuring no contravention of water quality standards. (TS, pp. 42-43.) Moreover, Department Staff pointed out that making the pilot test a special permit condition would allow the Department to oversee the testing effort and provide some legal control of the process. (TS, pp. 41-42.)

Department Staff maintained that the responsibility to evaluate the manner in which the pilot test was conducted and the pilot test results was theirs alone and any determination as to the adequacy of the pilot test and the efficiency of the LAS based upon the pilot test results should be entrusted solely to Department Staff. (TS, pp. 67-70.) As part of that deliberative process, Department Staff would solicit written comment from the parties. (TS, p. 67.)

Town of Bedford

The Town of Bedford, while not opposing a pilot study, argued that it should be conducted under a separate SPDES permit issued solely for that purpose, and not as part of a special condition to the instant draft permit. (Position Letter of the Town of Bedford, dated April 15, 2003, Exhibit C; TS, p. 62.) In this way, if the LAS failed, the Department would deny the instant SPDES application, which would, in turn, compel the Applicant to either propose an alternative golf course not requiring a SPDES permit or an alternative method for the control of water quality impacts from pesticides and fertilizers. (TS, p. 56-58.) Moreover, the results of any pilot study should be presented to the ALJ at a reconvened Issues Conference. Should any dispute still exist as to the adequacy of the pilot test, the matter would be adjudicated and a determination made by the ALJ as to such adequacy. (TS, pp. 51 and 70-71.).

Village and Town of Mount Kisco

Mount Kisco argued that the proposed pilot test protocol lacked sufficient detail such that any performance data developed thereto would be inadequate for the SPDES determination required of the Department in the instant application. (Position Letter of the Village and Town of Mount Kisco, dated April 18, 2003, Exhibit D, p. 1.) Moreover, this inadequacy would only be exacerbated by the proposed design changes to the golf course, Mount Kisco asserted. (Id.)

With regard to the pilot test protocol proposed by the Applicant, Mount Kisco articulated five primary concerns. First, it argued, the design of the LAS contained in the FEIS and SPDES application was at variance with that contained in the pilot test protocol to such a degree as to invalidate the Applicant's original assumptions as to nutrient removal. In particular, the LAS trench as originally designed utilized a 24-inch thick layer of loamy sand which would have provided some degree of nutrient removal from runoff, but this was now being replaced by a layer of pea gravel surrounding an arched storage chamber which, Mount Kisco argued, would not remove any of these contaminants. (Exhibit D, pp. 3-5; TS, pp. 78-80.) In addition, the use of grass pavers in the swales would result in less luxuriant turf and thus reduce that turf's ability to reduce nutrients. (Id.) Second, Mount Kisco argued that the protocol failed to provide sufficient detail as certain elements of the proposed LAS design which would be required in order to properly evaluate the system. In particular these included (1) details as to swale dimensions, in order to evaluate their adequacy; (2) information as to the porosity of the filter fabric or grass pavers now part of the LAS design, in order to understand the likelihood of the LAS to clog; and (3) details on the manner in which storm events will be simulated, in order to evaluate whether data will be developed that will be applicable to the entire course under conditions that simulate normal golf course operations. (Exhibit D, pp. 5-6; TS, pp. 84-99.) Third, Mount Kisco asserted that the proposed LAS test protocol would yield inadequate data because it does not attempt to monitor for nutrients, nor for arsenic and ethylene thiourea, as required by the draft SPDES permit. (Exhibit D, pp. 6-7; TS, pp. 99-100.) Fourth, Mount Kisco argued that the protocol, particularly in view of the severity of certain of the precipitation events to be simulated, provided no assurance that stormwater would not overflow the LAS trenches and flow offsite thereby evading treatment and, fifth, that such a phenomenon would not be appropriately and adequately monitored. (Exhibit D, pp. 7-8; TS, pp. 100-114)

Mount Kisco asserted two additional concerns regarding the proposed pilot test. First, the pilot test protocol proposes to use the practicable quantitation limits (PQLs) as determined by the analytical laboratory engaged for the purposes of the test. However, these laboratory limits are higher than those already determined for six of the effluent parameters in the draft SPDES permit. Mount Kisco maintained that the pilot test limits should be the same as the draft SPDES permit limits, and that a third party monitor should be retained to monitor the conduct of the pilot test. (Exhibit D, pp. 8-9; TS, pp. 114-128.) Second, Mount Kisco argued that with respect to historic and cultural resources at the site and in light of the course redesign and a Phase II Archaeological Evaluation near the two pilot test holes excavated by the Applicant which revealed the presence of artifacts of historical significance, the Applicant should either confirm that site preparation for the pilot test will not disturb this area or take such appropriate steps as may be mandated by Section 14.09 of the New York Parks, Recreation and Historic Preservation Law. (Exhibit D, pp. 9-10; TS, pp. 128-132.)

Finally, Mount Kisco argued that the aforementioned additional information and details should be supplied by the Applicant. Should additional open issues remain, the ALJ should convene an on-the-record discussion of the same followed by a ruling with respect to the same and subject to appeal to the Commissioner. Thereafter, the pilot test should be conducted, overseen by a third party monitor. Once completed, the pilot test results should be presented to the ALJ at a reconvened Issues Conference for further consideration by the ALJ and an evaluation of additional issues related to design limitations and potential failure modes of the LAS, followed by further proceedings as may be indicated. (Exhibit D, p. 10.)

DISCUSSION

Proposed Pilot Test Protocol

The pilot test protocol proposed by the Applicant is reasonably sufficient in both detail and method to ensure that it will achieve its goal: to provide empirical performance data upon which the efficacy of the LAS may be determined. Moreover, the record indicates that the concerns raised by Mount Kisco have been adequately addressed. First, with respect to nutrient removal, the substitution of a layer of pea gravel surrounding an arched chamber in the LAS trench for the 24-inch thick layer of loamy sand is of no moment since, in the original analysis, no credit was taken for nutrient removal by the loamy sand. (TS, p. 80.) Also, the grass pavers will only provide a more rigid substrate for the turf they support, but will not diminish that turf's ability to filter nutrients. (TS, p. 81.) Second, with respect to the lack of sufficient detail as to certain elements of the proposed LAS design which would be required in order to properly evaluate the system, including details as to swale demensions, information as to the porosity of the filter fabric or grass pavers now part of the LAS design, and details on the manner in which storm events would be simulated, Mount Kisco was supplied with data responsive to these concerns. (TS, p. 94.) As to whether the design of the LAS was adequate to the circumstances, the Applicant pointed out that this was the fundamental purpose of the pilot test, in the first instance. (TS, p. 96.) Third, with respect to the concern that the proposed LAS test protocol would yield inadequate data because it does not attempt to monitor for nutrients, nor for arsenic and ethylene thiourea, as required by the draft SPDES permit, the Applicant asserted that these values would be monitored as well, as part of the pilot test. (TS, pp. 82, 84 and 99-100.) Fourth, with regard to Mount Kisco's concern that there was no assurance that stormwater would not overflow the LAS trenches and flow offsite thereby evading treatment, the Applicant pointed out that this was virtually impossible since the swales are designed to accommodate a 100-year storm. (TS, p. 106 and 111-112.) Moreover, even if such overtopping of the swales were to occur during the pilot test, there would be no flow either toward or into Byram Lake. (TS, p. 105.) Finally, in addressing Mount Kisco's fifth concern that any overflow would not be appropriately and adequately monitored, the Applicant pointed out such monitoring was being undertaken at the exit point from the site. (TS, p. 110.)

With regard to Mount Kisco's two additional concerns regarding the proposed pilot test, first, that the pilot test laboratory determined PQLs were higher than those already determined for six of the effluent parameters in the draft SPDES permit and, second, with respect to historic and cultural resources at the site, the Applicant asserted that the pilot test PQLs would be the same as those articulated in the draft SPDES permit, and that more would be done with respect to the archaeological evaluation already undertaken near the two pilot test holes, this also being the Applicant's recommendation to the State. (TS, pp. 116-117 and 130-132.)

Issues Ruling 1 of August 23, 2002

In my Issues Ruling of August 23, 2002, I determined that the lack of performance data as to the efficacy of the proposed LAS had raised an issue that was substantive in that the lack of such data precluded the Department from making the required determination under Section 754.1(b) of 6 NYCRR that compliance with the provisions of the draft SPDES permit will reasonably assure compliance with water quality standards. Moreover, I determined that the absence of this necessary 6 NYCRR 754.1(b) determination would result in denial of the permit. Accordingly, I ruled that such performance data be assembled and, if necessary, the Issues Conference reconvened for its receipt and evaluation. While the assembly of such performance data remains essential, it is important to understand the historical context in which this ruling was made and the subsequent change in circumstances that has occurred. At the time of the ruling, both the Applicant and the Department Staff asserted that no pilot test was necessary and that one was not being required as a condition in the instant SPDES permit. (Issues Conference of December 18, 2001, pp. 29-30; hereinafter abbreviated IC and page number.) Indeed, Bedford had suggested just such a permit condition. (IC, p. 56.) By March of 2003, however, the position of both the Applicant and the Department Staff had changed. By letter dated March 26, 2003, Department Staff proposed that a pilot study take place, implementing a protocol for the same developed by the Applicant. The pilot study would be included in the SPDES permit as a special condition. This special condition was the subject of the reconvened Issues Conference on April 23, 2003. (Exhibit A.)

The undertaking of a pilot test, as a special condition to the instant SPDES permit, to develop the performance data necessary to evaluate the efficacy of the LAS is not at variance with the meaning and intent of my Issues Ruling of August 23, 2001. In fact, such an approach is suggested at page 42 of the Ruling where I proposed the phased construction of the golf course beginning with those holes located in the Wampus basin, followed by those in the Kisco River basin, and finally those located in the Byram Lake basin, with pilot testing undertaken first in the Wampus River and then the Kisco River basins. Such a phased construction would require the issuance of a SPDES permit before construction of the LAS in these phases could be accomplished.

The issuance of a separate SPDES permit for the pilot test is unnecessary and, indeed, less protective of the environment than the proposed special condition in the SPDES permit which covers the entire course. As written, should the LAS fail, no pesticides, nutrients or other chemicals will be permitted to be used anywhere else on the entire course.

The Applicant has proposed a pilot test protocol for the LAS that is comprehensive in its scope and thorough in its method. Its implementation will assure the generation of the very performance data essential to a determination pursuant to 6 NYCRR 754.1(b) by the Department. However, whether the performance data developed through the pilot test demonstrates the efficacy of the LAS to the level asserted by the Applicant is a judgment solely within the purview of Department Staff. While such may have been appropriate if the Applicant and Department Staff had refused to provide for a pilot study and only undertaken the same at the direction of the ALJ, raising issues of the thoroughness and adequacy of the study, in the present historical context of the matter, it is unnecessary to reconvene the Issues Conference at a future time for the receipt of the performance data. All the parties have had the opportunity to review and comment on the proposed pilot test protocol at the reconvened Issues Conference on April 23, 2003. The laboratory results of the samples taken during the test will be certified by the laboratory conducting the sample analyses. The LAS plans, specifications and construction will be certified by a New York State licensed Professional Engineer. Moreover, the protocol requires that all the parties be provided with the results of the pilot study. Department Staff has also agreed to provide a reasonable time for comment by the parties on the test results before making any determination as to whether the LAS, as tested, has met design standards. Accordingly, in view of the proposed pilot test protocol and the development of the performance data that will be accomplished through its implementation, I find that a substantive and significant issue is no longer raised with respect to the lack of LAS performance data.

Supplementary Ruling No. 1: Issues Ruling No. 1, of August 23, 2002, is hereby rescinded. The performance data as to the efficacy of the proposed LAS will be developed through the pilot test proposed by the Applicant and required as a special condition of the instant SPDES permit. This data will allow the Department to either make the determination required under Section 754.1(b) of 6 NYCRR that compliance with the provisions of the draft SPDES permit will reasonably assure compliance with water quality standards, or decline from making such determination. Accordingly, no substantive and significant issue has been raised in this regard and no adjudication is required.

Issues Ruling 2 of August 23, 2002

In Ruling No. 2 of my Issues Ruling of August 23, 2002, I determined that 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 raised issues that were both substantive and significant and were, accordingly, adjudicable. In view of the special permit condition proposed by Department Staff, these concerns have been effectively rendered academic. This is so because only two scenarios are possible. Either the LAS functions at the efficiency asserted by the Applicant and, therefore, meets design standards and is so confirmed by the Department, or, the LAS does not function at the efficiency asserted by the Applicant and, therefore, does not meet design standards and is not so confirmed by the Department. Should the latter scenario occur, the Applicant will be precluded from applying pesticides, fertilizers or other chemicals to the vegetated areas of the course. In short, either the LAS works, or the entire golf course will be organically maintained. Accordingly, neither failure modes nor design limitations need be adjudicated. Since Department Staff will not make any determination pursuant to 6 NYCRR 754.1(b) without due consideration of the parties' comments, the parties will have been afforded the opportunity to articulate and preserve their respective positions as to LAS design issues for Article 78 review, should such review be deemed appropriate.

Supplementary Ruling No. 2: Issues Ruling No. 2 of August 23, 2002, is hereby rescinded. 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 have been rendered academic by the pilot test proposed by the Applicant and required as a special condition of the instant SPDES permit. Accordingly, no issue is thus raised that is both substantive and significant and no adjudication is required.

CONCLUSION

As I indicated in my Issues Ruling of August 23, 2002, any determination by the Department in this matter pursuant to Section 754.1(b) of 6 NYCRR cannot be based solely on the engineering theory and design of the, as yet, untried LAS. That determination must include a consideration of actual empirical data developed in the field, demonstrating its efficacy. The failure to assemble and review such data could needlessly jeopardize the waters of Byram Lake. The special condition proposed by Department Staff, as well as the LAS pilot study protocol prepared by the Applicant, ensure that the performance data for the LAS, critical to any determination by the Department, will be fully developed.

Section 6.5.1 of the proposed LAS pilot test protocol requires that upon completion of the pilot testing, a report be prepared and submitted to the Towns of North Castle and Bedford, the Village and Town of Mount Kisco and the Department. While the Department has invited the parties to provide their comments with respect to the pilot study, this understanding should be reflected in the express terms of the proposed special permit condition. Accordingly, I recommend that the special condition be amended by the addition of the language indicated in italics, as follows:

Applicant shall complete the LAS Pilot Study which is annexed to this permit as Exhibit "A." Except as shall be required for completion of the LAS Pilot Study, and in full conformance therewith, Applicant is hereby prohibited from applying herbicides, fungicides, pesticides, lawn treatments, turfgrass treatments, fertilizers, chemicals or compounds, to the vegetated areas of the site until DEC has reviewed all required pilot study data and engineering certifications, as well as any comments thereto provided by the Towns of North Castle and Bedford and the Village and Town of Mount Kisco, which comments shall be provided to the Department within 30 days of their receipt of the pilot study report provided for in Section 6.5.1 of the protocol to the aforementioned LAS Pilot Study, and confirmed in writing that the data and engineering certifications demonstrate that the LAS, as tested, has met design standards.

In view of the forgoing Supplementary Rulings and my Issues Ruling of August 23, 2002, I find that the Petitioners have not raised an issue that is substantive and significant requiring further consideration or adjudication. With the addition of the special condition regarding pilot testing of the LAS, as amended, I recommend that the SPDES permit requested by the Applicant be granted.

APPEALS

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, including any supplements or revisions to any appeals previously filed with respect to my Issues Ruling of August 23, 2002, 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 October 6, 2003. Moreover, responses to these appeals will be allowed and such responses must be received as above no later than the close of business on October 20, 2003.

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
September 2, 2003

New York State Department of
Environmental Conservation
______________/s/___________________
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.
Regional Attorney
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

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