Nassau County Department of Health - Order, November 13, 2003

Order, November 13, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

-By-

NASSAU COUNTY DEPARTMENT OF HEALTH
(NASSAU COUNTY),
Respondent

ORDER

DEC File No. R1-20020627-177

WHEREAS:

1. On August 5, 2001, staff of the New York State Department of Environmental Conservation ("Department") served a notice of hearing, a notice of pre-hearing conference and a complaint upon respondent, Nassau County Department of Health. No answer was served to the complaint. Pursuant to section 622.12 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Department staff duly served a motion for order without hearing upon respondent Nassau County Department of Health on September 16, 2002. Nassau County Department of Health filed no written response to Department staff's motion.
2. Nassau County Department of Health is an agency of the County of Nassau, New York, having offices at 240 Old Country Road, Mineola, New York 11501-4250.
3. Nassau County Department of Health operates a sewage disinfection facility known as "Continental Villa of Locust," also known as the Birches ("Facility"), located on Meleny Road in Locust Valley, Town of Oyster Bay, Nassau County, New York. The County of Nassau owns the land upon which the Facility is located.
4. Nassau County Department of Health was issued State Pollutant Discharge Elimination System ("SPDES") permit number NY018995 ("Permit") for discharges from the Facility to the surface waters of the State. The Permit was effective April 16, 2000, and expires May 1, 2005. The Permit was renewed on April 16, 2000, and was previously in effect for a term commencing April 17, 1995 and expiring April 16, 2000.
5. The Permit includes effluent limitations for 30 day arithmetic mean flow ("flow"), 30 day and 7 day arithmetic means and percent removals for five day biochemical oxygen demand ("BOD5") and for total suspended solids ("TSS"), total coliform, fecal coliform and chlorine residual in the discharge from the Facility.
6. As a result of numerous exceedances of the Permit's effluent limitations and enforcement action by the Department with respect thereto, on May 4, 1999 Nassau County Department of Health entered into Order on Consent No. 1-3609-89-03, which became effective upon execution by the Department on May 11, 1999 ("May 1999 Order").
7. The May 1999 Order provided Nassau County Department of Health with interim effluent limits which significantly relaxed the effluent limitations in Nassau County Department of Health's Permit, including the effluent limits for flow, BOD5 (30 day mean), BOD5 (7 day mean), TSS (30 day mean) and TSS (7 day mean). Moreover, the May 1999 Order contained a Compliance Schedule (Schedule A)("Compliance Schedule") which delineated specific corrective actions to be undertaken by Nassau County Department of Health at the Facility, including the submission of various reports, documents, plans and specifications, all of which were to be certified by a professional engineer, licensed to practice in the State of New York, in accordance with Department regulation.
8. Based upon Discharge Monitoring Reports ("DMRs") certified by Nassau County Department of Health and filed with the Department for the period May 1999 through March 2002, BOD5 removal of at least 85% was not achieved during thirty (30) months and TSS removal of at least 85% was not achieved during fifteen (15) months at the Facility.
9. Section 17-0509 of the Environmental Conservation Law ("ECL") provides that the minimum degree of treatment required for the discharge of sanitary sewage to surface waters of the State shall be "effective secondary treatment," the definition of which requires the removal of at least 85% of BOD5 and TSS. The failure to attain this 85% standard during the times articulated in Finding of Fact 8, above, constitutes violations of ECL 17-0509.
10. Based upon DMRs certified by Nassau County Department of Health and filed with the Department for the period May 1999 through March 2002, Nassau County Department of Health has failed to comply with the aforementioned interim effluent limits for flow, BOD5 (30 day mean), BOD5 (7 day mean), TSS (30 day mean) and TSS (7 day mean). In particular, the interim effluent limit for flow was exceeded during one (1) month; the interim effluent limit for BOD5 (30 day mean) was exceeded during eleven (11) months; the interim effluent limit for BOD5 (7 day mean) was exceeded during twelve (12) months; the interim effluent limit for TSS (30 day mean) was exceeded during nine (9) months; and the interim effluent limit for TSS (7 day mean) was exceeded during ten (10) months.
11. ECL 17-0803 and section 751.1 of 6 NYCRR provide that it is unlawful to discharge pollutants to the waters of the State from any outlet or point source in a manner other than as prescribed by a SPDES permit. The exceedances articulated in Finding of Fact 10, above, constitute violations of these regulatory provisions, as well as violations of the express provisions of the May 1999 Order.
12. Section I(a)(3) of the Compliance Schedule required Nassau County Department of Health to submit an engineer's certification for all plans and specifications identified in any engineering report prepared by Nassau County Department of Health describing the measures which would be taken to achieve SPDES permit effluent limit compliance at the Facility. This certification was to be made by a professional engineer licensed to practice in the State of New York and was to be submitted to the Department not later than 120 days after the execution of the May 1999 Order by the Department, which occurred on May 11, 1999. This certification was never submitted to the Department by Nassau County Department of Health and, accordingly, Nassau County Department of Health has violated the express terms of the May 1999 Order.
13. At the time of the service of the motion for order without hearing, ECL 71-1929 provided, in pertinent part, that a person who violated any of the provisions of, or who failed to perform any duty imposed by, ECL article 17, title 8, or the rules, regulations, orders or determinations of the Commissioner promulgated thereto or the terms of any permit issued thereunder, would be liable for a penalty of not to exceed twenty-five thousand dollars ($25,000) per day for each violation.
14. A copy of the motion and supporting papers was filed with the Office of Hearings and Mediation Services, and the matter was assigned to Administrative Law Judge (ALJ) Richard R. Wissler. Department staff had sought, and ALJ Wissler, recommended, assessment of a civil penalty in the amount of one hundred seventy-five thousand dollars ($175,000.00) against Nassau County Department of Health.
15. A copy of the ALJ's report is attached to this Order, and I hereby adopt it as my own subject to the following comments. I concur with the ALJ's recommendation to impose a civil penalty of one hundred seventy-five thousand ($175,000.00). However, based upon my review of the record, the obligations pursuant to the May 1999 Order and compliance time periods, I have determined to suspend initially one-half of the penalty and to establish certain conditions that would allow for the suspended amount to be extinguished. It is noted in the Hearing Report that Nassau County Department of Health indicated that plans and specifications for a new wastewater treatment facility have been prepared. Consequently, I am directing that, as part of the conditions that must be satisfied to extinguish the suspended portion of the penalty, Nassau County Department submit an engineer's certification for these plans and specifications for a new wastewater treatment facility, as required by Section I(a)(3) of the Compliance Schedule in the May 1999 Order, to the Department within one month of service of this Order. In addition, the Nassau County Department of Health must complete, as of June 1, 2004, implementation of the Compliance Schedule in the May 1999 Order, and must otherwise be in compliance with the May 1999 Order and this Order in order for the suspended penalty to be extinguished.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

1. Department staff's motion for order without hearing pursuant to 6 NYCRR 622.12 is granted. The proof, as articulated above, demonstrates that Nassau County Department of Health is in violation of ECL articles 17 and 71, and 6 NYCRR part 751, as well as the terms and conditions of Order on Consent Number 1-3609-89-03, effective May 11, 1999.
2. With respect to the aforesaid violations, a civil penalty in the amount of one hundred seventy-five thousand dollars ($175,000.00) is hereby assessed against Nassau County Department of Health. Of this total penalty amount, eighty-seven thousand five hundred dollars ($87,500.00) shall be paid to the Department within forty-five (45) calendar days of the service of this Order upon Nassau County Department of Health. The payment of the balance of the civil penalty (eight-seven thousand five hundred dollars ($87,500.00)) shall be suspended and that payment obligation extinguished if:
   1. within one month of service of this Order, Nassau County Department of Health submits to the Department an engineer's certification in compliance with Section I(a)(3) of the Compliance Schedule set forth in the May 1999 Order;
   2. by June 1, 2004, Nassau County Department of Health completes implementation of the Compliance Schedule set forth in the May 1999 Order; and
   3. Nassau County Department of Health is otherwise in compliance with the May 1999 Order and this Order.
3. In the event that the Department determines, on or after June 1, 2004, that Nassau County Department of Health has not satisfied the conditions set forth in Paragraph II of this Order, the Department may serve upon Nassau County Department of Health a notice of noncompliance. The notice of noncompliance shall set forth the nature of the violation and that the suspended balance of the civil penalty, eighty-seven thousand five hundred dollars ($87,500.00), is due and payable. Nassau County Department of Health shall deliver that full amount to the Department within thirty (30) calendar days after receipt of such notice. In the event that the Department determines on or after June 1, 2004, that Nassau County Department of Health has satisfied the conditions set forth in Paragraph II of this Order, the Department shall serve upon Nassau County Department of Health a notice of compliance, upon which the payment obligation for the suspended portion of the penalty shall be extinguished.
4. Nassau County Department of Health is to strictly comply with the effluent limitations set forth in the Compliance Schedule of the May 1999 Order.
5. All communications from Nassau County Department of Health to the Department in this matter, including the payment of penalties, shall be directed to Louise DeCandia, Esq., Assistant Regional Attorney, New York State Department of Environmental Conservation, Region One, Building 40 - SUNY, Stony Brook, New York 11790-2356.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/s/
By: Erin M. Crotty, Commissioner

Albany, New York
November 13, 2003

To:
Jane Houdek, Esq.
Office of the County Attorney of Nassau County
One West Street
Mineola, New York 11501-4820

Director,
Nassau County Department of Health
240 Old Country Road
Mineola, New York 11501

Louise M. DeCandia, Esq.
New York State Department of Environmental Conservation
Division of Legal Affairs, Region One
Building 40 - SUNY
Stony Brook, New York 11790-2356

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 BROADWAY
ALBANY, NY 12233-1550

In the Matter

- of -

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

-By-

NASSAU COUNTY DEPARTMENT OF HEALTH,
Respondent

DEC File Number R1-20020627-177

REPORT ON MOTION FOR ORDER WITHOUT HEARING

/s/
Richard R. Wissler
Administrative Law Judge

SUMMARY

Staff of the Department of Environmental Conservation ("Department Staff") moved for an Order Without Hearing against the Nassau County Department of Health ("Respondent") for various violations of the water pollution control laws and regulations and for violation of the terms and conditions of an Order on Consent previously entered into by the parties, concerning a wastewater treatment facility maintained by the County in the Town of Oyster Bay, New York. For the reasons set forth herein, the Motion is granted in all respects.

BACKGROUND

The County of Nassau, through its agency, the Nassau County Department of Health, operates a wastewater treatment facility on Meleny Road, Locust Valley, in the Town of Oyster Bay, New York, known as "Continental Villa of Locust Valley" or "The Birches" ("Facility"). The Facility was designed and built to treat sewage overflows collected from several septic tanks and cesspools in a 49 lot subdivision of private homes located on and in the area of Meleny Road. The cause of these overflows was determined to be the high groundwater in the area. In an attempt to alleviate this problem, in the late 1960's, the Town of Oyster Bay installed a lateral under drain system consisting of a perforated pipe placed approximately three feet below grade to lower the water table in the area. This perforated pipe was connected to the storm drain. In the intervening years, at least 24 of the subdivision's homes have connected overflow pipes from their failing on-site septic systems directly to the Town's lateral under drain system, with the initial result that untreated sewage was being released into adjacent tidal wetlands. In 1983, the County Facility was built, as an interim emergency measure, to disinfect the discharge from the Town's under drain system prior to its release into adjacent tidal wetlands. The Respondent was issued State Pollutant Discharge Elimination System (SPDES) Permit No. NY0189995 by the Department for the operation of the Facility.

Existing groundwater inflow and infiltration conditions in the area can cause the flow limits of the SPDES permit to be exceeded. The County has proposed to construct a new facility at the site and has applied for and been awarded $522,500 in New York State Environmental Bond Act funds for the proposed project. To date, the new facility has not been constructed, although the plans and specifications for the project have been prepared.

The Facility, as originally built, failed to provide adequate secondary treatment and on numerous occasions exceeded the effluent limits mandated by its SPDES permit. To address these violations, the Respondent agreed to an Order on Consent, effective May 11, 1999. Annexed to the Order on Consent, and made a part thereof, is a Compliance Schedule providing detailed corrective actions to be undertaken by the Respondent at the Facility, as well as a timetable for their accomplishment or implementation. The Compliance Schedule also provides interim effluent limitations pending the completion of the aforementioned corrective actions. The Order on Consent provides, inter alia, for specific stipulated penalties for failure to meet the milestone dates mandated in the Schedule of Compliance or for violation of the interim effluent limitations provided therein.

PROCEDURAL HISTORY

On August 5, 2002, the Department Staff served a Notice of Hearing, Pre-Hearing Conference and Complaint upon the Respondent, alleging three causes of action. The first cause of action alleges that the Respondent, during the period May 1999 through March 2002, as indicated in the Discharge Monitoring Reports (DMRs) it filed with the Department during the period, failed to provide effective secondary treatment at the Facility within the meaning of ECL 17-0509, by failing to achieve eighty-five percent removal of five day biological oxygen demand (BOD5) for thirty months and eighty-five percent removal of total suspended solids (TSS) during fifteen months. The second cause of action in the Complaint alleges that the Facility, during the period May 1999 through March 2002, as indicated in the DMRs filed with the Department during the period, exceeded the interim limit for BOD5 (30 day mean) during ten months; exceeded the interim limit for BOD5 (7 day average) during eleven months; exceeded the interim effluent limit for flow during one month; exceeded the interim effluent limit for TSS (30 day mean) during nine months; and exceeded the interim effluent limit for TSS (7 day mean) during ten months, all in violation of ECL 17-0803 and 6 NYCRR 751.1, as well as the terms of the aforementioned Order on Consent. The third cause of action in the Complaint alleges that the Respondent violated the terms of the aforementioned Order on Consent by failing to have certain engineering reports, plans and specifications submitted to the Department certified by a professional engineer, duly licensed in the State of New York.

The Notice annexed to the Complaint stated that a Pre-Hearing Conference would be held in the matter on August 19, 2002, at the Department's Region 1 office in Stony Brook, New York. The Respondent did not serve an Answer to the Complaint, but did contact the Department, on August 13, 2002, seeking an adjournment of the Pre-Hearing Conference. The Respondent indicated that it would contact the Department, within the week, to schedule an alternate date for the pre-hearing conference, but failed to do so. To date, the Respondent has not served an Answer to the Complaint.

By Notice of Motion dated September 16, 2002, Department Staff moved for an Order Without Hearing, pursuant to 6 NYCRR 622.12. In support of the Motion, Department Staff provided the following documents: (1) an Attorney's Affirmation by Louise M. DeCandia, Esq., Assistant Regional Attorney in the Department's Region 1 office in Stony Brook, New York, dated September 16, 2002; (2) a Memorandum of Law; (3) the Affidavit of Anthony Leung, an Environmental Engineer 2 with the Department's Region 1 Water Program, sworn to on September 16, 2002; (4) a copy of Order on Consent No. 1-3609-89-03, signed by the Respondent on May 4, 1999, and executed by the Department on May 11, 1999; (5) a copy of a letter, dated August 6, 2001, from the Respondent to the Department requesting the extension of certain time frames articulated in the Order on Consent; (6) a copy of the Notice of Hearing, Pre-Hearing Conference and Complaint served by the Department on the Respondent and dated August 5, 2002; (7) a copy of a letter dated August 13, 2002, from the Respondent to the Department confirming the adjournment of the Pre-Hearing Conference originally set for August 19, 2002; and (8) a copy of a United States Postal Service Domestic Return Receipt for certified mail signed by the Respondent on August 7, 2002.

The Department Staff's Motion for Order Without Hearing alleges the same violations articulated in the Complaint of August 5, 2002. The Respondent did not respond to the Motion within the twenty day period provided in 6 NYCRR 622.12(b). However, on November 12, 2002, during a conference call in which the ALJ and the attorneys for the Department Staff and Respondent participated, the Respondent's time to respond to the Motion was extended to December 12, 2002. Upon the consent of Department Staff, and with the approval of the ALJ, Respondent's time to respond to the Motion was further extended to January 31, 2003. Nevertheless, no written response to the Department Staff's Motion was filed by the Respondent on January 31st.

At the direction of the ALJ, the attorneys for the Respondent and Department Staff appeared for a conference in the matter on February 19, 2003, at the Department's Region 1 Headquarters in Stony Brook, New York. During the conference on February 19, 2003, Respondent's attorney advised the ALJ that a response to the Department Staff's Motion had been prepared and served. She assured the ALJ that a copy of the response would be forwarded to him and the Department Staff not later than the following Monday, February 24, 2003. On February 24, 2003, Department Staff forwarded to the ALJ, at the request of the Respondent's attorney, an email received that day by Department Staff from the Respondent's attorney, indicating that the computer disc containing the Respondent's response papers to the Motion had been lost and that the responsive papers were being retyped and would be forwarded to the ALJ and Department Staff the next day. To date, no response to the Department Staff's Motion has been received from the Respondent, nor has the Respondent requested any additional time in which to file a response. Accordingly, although the ALJ had indicated a willingness to hold further conferences in the matter upon the submission of additional responsive papers and/or pleadings by the parties, at this point in time, there exists no procedural reason to delay a ruling in the instant matter.

As agreed at the conference on February 19, 2003, the Respondent's attorney copied the Department and the ALJ on a letter dated February 20, 2003, from Peter J. Gerbasi, P.E., Commissioner of the Nassau County Department of Public Works to Philip M. DeGaetano, P.E., Assistant Director of the Department's Division of Water. This letter confirms the Respondent's commitment to construct a new treatment facility, its continued need for Bond Act funding, and discusses the history of the flow and treatment problems at the Facility. This letter is herewith made a part of the record in the instant proceeding.

POSITIONS OF THE PARTIES

Department Staff

As more particularly delineated above, Department Staff alleges that the Respondent has violated the ECL and its implementing regulations in three respects. First, the Respondent, failed to provide effective secondary treatment at the Facility within the meaning and in violation of ECL 17-0509, by failing to achieve eighty-five percent removal of five day biological oxygen demand (BOD5) for thirty months and eighty-five percent removal of total suspended solids (TSS) during fifteen months, as documented by Discharge Monitoring Reports (DMRs) executed and filed by the Respondent with the Department. Second, the Facility violated the provisions of ECL 17-0803 and 6 NYCRR 751.1, as well as the terms of Order on Consent No. 1-3609-89-03 by exceeding its SPDES permitted interim limits for BOD5 (30 day mean) during ten months; its interim limit for BOD5 (7 day average) during eleven months; its interim effluent limit for flow during one month; its interim effluent limit for TSS (30 day mean) during nine months; and its interim effluent limit for TSS (7 day mean) during ten months. Third, the Respondent violated ECL 71-1929 by failing to have certain engineering reports, plans and specifications submitted to the Department certified by a Professional Engineer, duly licensed in the State of New York, as directed by the aforementioned Order on Consent. Department Staff maintains that no material issue of fact exists with regard to these alleged violations and, therefore, it is entitled to summary judgment in its favor.

Respondent

While the Respondent did not file a written response to the Department's motion, it did appear at the conference held in this matter on February 19, 2003. Moreover, the Respondent copied the Department and the ALJ on the letter of February 20, 2003, from Peter J. Gerbasi, P.E., Commissioner of the Nassau County Department of Public Works to Philip M. DeGaetano, P.E. In colloquy on the record at that conference, the Respondent acknowledged its obligations under the Order on Consent and indicated that plans and specifications for a new facility had been prepared by the County, but that the matter had not yet been put out for bid for the selection of a contractor. The County acknowledged that it had applied for and had received a commitment from the Department for State Bond Act monies to defray part of the costs of the proposed project. The problem, in the County's view, was that the new facility, even if constructed, would still fail because of the excessive inflow and infiltration of groundwater experienced at the Facility. This problem, according to the County, was being caused by the lateral under drain system installed and owned by the Town of Oyster Bay. Consequently, the County asserted, the Town of Oyster Bay should be made a party to the instant proceeding, and urged that the Department Staff do so by redrafting and reserving the instant Complaint to include the Town, or, in the alternative, that the ALJ join the Town as a party to the proceeding on his own initiative.

FINDINGS OF FACT

1. The Respondent, Nassau County Department of Health (NCDH), is an agency of the County of Nassau, New York, having offices at 240 Old Country Road, Mineola, New York 11501-4250.
2. The Respondent operates a sewage disinfection facility known as "Continental Villa of Locust," also known as the Birches, ("Facility") located on Meleny Road in Locust Valley, Town of Oyster Bay, Nassau County, New York. The County of Nassau owns the land upon which the Facility is located.
3. The Respondent has been issued State Pollutant Discharge Elimination System (SPDES) permit number NY018995 ("Permit") for a discharge from the Facility to the surface waters of the State. The Permit has an effective date of April 16, 2000, and an expiration of May 1, 2005. The Permit, was renewed on April 16, 2000, and had been previously in effect for a term commencing April 17, 1995, and expiring April 16, 2000.
4. The Permit includes effluent limitations for 30 day arithmetic mean flow (flow), 30 day and 7 day arithmetic means and percent removals for five day biochemical oxygen demand (BOD) and for total suspended solids (TSS), total coliform, fecal coliform and chlorine residual in the discharge from the Facility.
5. As a result of numerous exceedances of the aforementioned effluent limitations and enforcement action by the Department with respect thereto, on May 4, 1999, the Respondent entered into Order on Consent No. 1-3609-89-03 ("Order"), which Order became effective upon execution by the Department on May 11, 1999.
6. The Order provided the Respondent with interim effluent limits which significantly relaxed the effluent limitations in Respondent's Permit, including the effluent limits for flow, BOD5 (30 day mean), BOD5 (7 day mean), TSS (30 day mean) and TSS (7 day mean). Moreover, the Order contained a Compliance Schedule, Schedule A, which delineated specific corrective actions to be undertaken by the Respondent at the Facility, including the submission of various reports, documents, plans and specifications, all of which were to be certified by a professional engineer, licensed to practice in the State of New York, in accordance with Department regulation.
7. Based upon Discharge Monitoring Reports (DMRs), certified by the Respondent and filed with the Department, for the period May 1999 through March 2002, BOD5 removal of at least 85% was not achieved during thirty (30) months and TSS removal of at least 85% was not achieved during fifteen (15) months at the Facility.
8. Section 17-0509 of the Environmental Conservation Law (ECL) provides that the minimum degree of treatment required for the discharge of sanitary sewage to surface waters of the State shall be "effective secondary treatment," the definition of which requires the removal of at least 85% of BOD5 and TSS. The failure to attain this 85% threshold during the times articulated in Finding of Fact 7, above, constitutes violations of ECL 17-0509.
9. Based upon Discharge Monitoring Reports (DMRs) certified by the Respondent and filed with the Department for the period May 1999 through March 2002, the Respondent has failed to comply with the aforementioned interim effluent limits for flow, BOD5 (30 day mean), BOD5 (7 day mean), TSS (30 day mean) and TSS (7 day mean). In particular, the interim effluent limit for flow was exceeded during one (1) month; the interim effluent limit for BOD5 (30 day mean) was exceeded during eleven (11) months; the interim effluent limit for BOD5 (7 day mean) was exceeded during twelve (12) months; the interim effluent limit for TSS (30 day mean) was exceeded during nine (9) months; and the interim effluent limit for TSS (7 day mean) was exceeded during ten (10) months.
10. ECL 17-0803 and Section 751.1 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) provide that it is unlawful to discharge pollutants to the waters of the State from any outlet or point source in a manner other than as prescribed by a SPDES permit. The exceedances articulated in Finding of Fact 9, above, constitute violations of these regulatory provisions, as well as the express provisions of Order on Consent No. 1-3609-89-03.
11. Section I(a)(3) of the Compliance Schedule of the Order, required the Respondent to submit an engineer's certification for all plans and specifications identified in any engineering report prepared by them describing the measures which would be taken to achieve SPDES permit effluent limit compliance at the Facility. This certification was to be made by a professional engineer licensed to practice in the State of New York, and was to be submitted to the Department not later than 120 days after the execution of the Order on Consent by the Department, which occurred on May 11, 1999. Respondent never submitted this certification to the Department and, accordingly, the Respondent has violated the express terms of the Order.
12. At the time of the service of the instant motion for order without hearing, ECL 71-1929 provided, in pertinent part, that a person who violated any of the provisions of, or who failed to perform any duty imposed by Title 8 of ECL Article 17, or the rules, regulations, orders or determinations of the Commissioner promulgated thereto or the terms of any permit issued thereunder, would be liable for a penalty of not to exceed twenty-five thousand dollars ($25,000) per day for each violation.

DISCUSSION AND RULING

From the moving papers submitted by Department Staff and from Respondent's reply thereto, it is clear that there are no substantive issues of fact with respect to each of the causes of action articulated in Department Staff's Complaint which necessitate an adjudicatory hearing in this matter. Indeed, the Respondent does not contest the alleged SPDES violations nor the need to implement corrective measures to ensure that a facility can be built which will operate in an environmentally sound manner. However, the County maintains that the redesign and reconstruction of the Facility will be to no avail if the excessive groundwater inflow and infiltration presently experienced at the Facility continues, a problem that is only exacerbated by the lateral under drain system installed and owned by the Town of Oyster Bay. Oyster Bay, the County asserts, should be made a party to the instant proceeding. While Department Staff acknowledges that the Town of Oyster Bay, and indeed, the homeowners who have connected their septic systems to the Town's lateral under drain system, could be made parties to the instant proceeding, they have elected not to join them, opting only to pursue the SPDES permittee, the County. (Transcript of Conference of February 19, 2003, pp. 7-8; hereinafter, abbreviated "T" and page number.) The decision to pursue only the SPDES permit holder, in a matter such as this, is consistent with the Department's past practice. (T., p. 17.)

Whether the Town of Oyster Bay, or other parties, should be joined in an enforcement action prosecuted by the Department addressing such violations of the ECL and its implementing regulations as may be justified by the facts and circumstances of this matter is a decision within the discretion of Department Staff. While the joinder of parties may be possible, as provided in CPLR 1003, the issue need not be determined in the instant proceeding, inasmuch as this proceeding is solely concerned with three alleged violations of the Order on Consent signed by the Respondent on May 4, 1999, and executed by the Department on May 11, 1999. This Order was signed by the Respondent with full knowledge of the facts and circumstances of the matter. Any assertion of impossibility by the Respondent is unavailing. Indeed, Paragraph VI of the Order provides that the Respondent will only be absolved from its obligations under the Order "because of an Act of God, war, riot, or other catastrophe ..." which is not the case herein. Accordingly, the County's motion to join the Town Oyster Bay as a party to the instant proceeding is denied.

CONCLUSION

1. Order on Consent Number 1-3609-89-03, signed by the Respondent on May 4, 1999, and executed by the Department on May 11, 1999, is an Order of the Commissioner within the meaning of ECL 71-1929(1).
2. Based upon Discharge Monitoring Reports (DMRs), certified by the Respondent and filed with the Department, for the period May 1999 through March 2002, BOD5 removal of at least 85% was not achieved at the Facility during thirty (30) months and TSS removal of at least 85% was not achieved at the Facility during fifteen (15) months. In view of the foregoing, the Respondent is in violation of the express terms set forth in the Order, as well as the 85% threshold set for effective secondary treatment mandated by ECL 17-0509.
3. Based upon Discharge Monitoring Reports (DMRs), certified by the Respondent and filed with the Department, for the period May 1999 through March 2002, the Facility has failed to comply with the aforementioned interim effluent limits for flow, BOD5 (30 day mean), BOD5 (7 day mean), TSS (30 day mean) and TSS (7 day mean). In particular, the interim effluent limit for flow was exceeded during one (1) month; the interim effluent limit for BOD5 (30 day mean) was exceeded during eleven (11) months; the interim effluent limit for BOD5 (7 day mean) was exceeded during twelve (12) months; the interim effluent limit for TSS (30 day mean) was exceeded during nine (9) months; and the interim effluent limit for TSS (7 day mean) was exceeded during ten (10) months. In view of the foregoing, the Respondent violated of the express terms set forth in the Order, as well as ECL 17-0803 and 6 NYCRR 751.1, which provide that it is unlawful to discharge pollutants to the waters of the State from any outlet or point source in a manner other than as prescribed by a SPDES permit.
4. The Respondent violated the express terms of the Order for failing to submit an engineer's certification for all plans and specifications identified in any engineering report prepared by the Respondent describing the measures which would be taken to achieve SPDES permit effluent limit compliance at the Facility, in accordance with Section I(a)(3) of the Compliance Schedule annexed to the Order.
5. The civil penalty sought by Department Staff in the amount of $175,000.00 is authorized by ECL 71-1929.

RECOMMENDATION

In view of the foregoing, I recommend that the Department Staff's motion for an Order without hearing made pursuant to 6 NYCRR 622.12 be granted and that the Commissioner issue an Order:

1. Finding the Respondent in violation of the aforementioned sections of ECL Articles 17 and 71 and 6 NYCRR Part 751;
2. Assessing a civil penalty against the Respondent in the amount of $175,000.00, and directing the payment of the same to the Department within 30 days of service of the Commissioner's Order upon the Respondent; and
3. Ordering the Respondent to strictly comply with the terms and conditions, including effluent limitations, of the Compliance Schedule of Order on Consent, Number 1-3609-89-03.

In addition, I would recommend that the Commissioner consider a direction to Department Staff to further investigate the involvement of other parties in the creation, conveyance and discharge of the sewage treated at the Respondent's Facility, including the Town of Oyster Bay, and directing Department Staff to take such regulatory action as is appropriate to the circumstances.

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