Riverhead, Town of - Ruling, July 1, 1996

Ruling, July 1, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Proposed Modification of the State Pollutant Discharge Elimination System ("SPDES") Permit of the TOWN OF RIVERHEAD Sewage Treatment Plant
(Permit No.1-4730-39/1-0; NY-0020061)

RULING ON ISSUES AND PARTY STATUS

July 1, 1996

Summary

On June 6, 1995, the Region 1 Office of the Department of Environmental Conservation (the "Department") sent a letter to the Town of Riverhead (the "Town") which notified the Town of the Department's intention of modifying the State Pollutant Discharge Elimination System ("SPDES") permit of the Riverhead Sewage Treatment Plant, by adding an effluent limitation for nitrogen. On June 20, 1995, the Town objected to the proposed modification and requested a hearing, but also requested an opportunity to attempt to settle the matter with the Department. Following unsuccessful settlement discussions, the Department Staff requested that the hearing be scheduled.

The hearing began on April 23 and 24, 1996. A group of organizations sought to intervene as a consolidated party to the hearing. These organizations are the Group for the South Fork, the Peconic Bay Estuary Program Citizens Advisory Committee and the North Fork Environmental Council (the "Intervenors").

The present rulings on issues and party status identify as issues for adjudication the majority of the 20 objections to the modification which the Town submitted with request for a hearing. The exceptions to this are two proposed objections which are actually the ultimate question which the Commissioner will decide following the hearing and two objections which are legal questions that are ruled upon in the present rulings.

In addition to these issues proposed by the Town, the Intervenors proposed several issues. The issues of whether the nitrogen effluent limit should be lower than the quantity proposed by the Department Staff and of whether to impose a moratorium on additional sewage connections will be included in the hearing. The proposed issue of whether the Riverhead Sewage Treatment Plant is causing violations of water quality standards other than the standards involving nitrogen and dissolved oxygen will not be included in the hearing.

The rulings grant party status to the Group for the South Fork, the Peconic Bay Estuary Program Citizens Advisory Committee and the North Fork Environmental Council, participating as a consolidated party (the "Intervenors").

Procedural Regulations and Environmental Quality Review

This hearing is subject to the Department's permit hearing regulations, Part 624 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 624").

Pursuant to Environmental Conservation Law ("ECL") Article 8, the State Environmental Quality Review Act ("SEQRA") and 6 NYCRR Part 617 (SEQRA), the Department determined that the proposed permit modification would not have a significant adverse environmental impact and that no environmental impact statement was necessary.

Standards for Identifying Issues for Adjudication

6 NYCRR 624.4(c) provides the standards for identifying adjudicable issues in a Department of Environmental Conservation permit hearing. The present hearing is not on a permit application but instead is on a Department-initiated modification of an existing permit. In such cases, under 6 NYCRR 624.4(c)(8), "[t]he only issues that may be adjudicated are those related to the basis for modification, suspension or revocation cited in the Department's notice to the permittee. Whenever such issues are proposed for adjudication, the determination to require adjudication will be made according to the standards set forth in paragraph (1) of this subdivision."

The cited paragraph 624.4(c)(1) states that an issue is adjudicable if it relates to a dispute between the Department Staff and the applicant over a substantial term or condition of the draft permit, if it relates to a matter cited by the Department Staff as a basis to deny the permit and is contested by the applicant, or it is proposed by a potential party and is both substantive and significant. In the case of a Department- initiated permit modification, the references in this paragraph to the "applicant" would apply to the permittee (the Town, in this case) and the references to the draft permit and to denial of the permit would apply to the proposed modification.

ISSUES

The Town's Objections to the Proposed Modification

The SPDES permit in question became effective on April 1, 1992 and has an expiration date of April 1, 1997. In early 1994, the Department Staff modified the permit to include a monitoring requirement for total nitrogen. The modification in question in the present hearing was initially identified, in the June 6, 1995 notice of intent to modify the permit, as incorporating "a permit effluent limit of 180 pounds per day for total nitrogen." The Town objected to the modification in a letter dated June 20, 1995. On March 8, 1996, the Department Staff sent the Town an amended notice of intent to modify the permit, which changed the proposed effluent limit to 170 pounds per day. The Town responded to the amended notice on April 15, 1996, and stated that its original objections also applied to the amended notice.

The Town listed its reasons for objecting to the permit modification as follows:

1. The proposed modification cannot be justified under any of the grounds enumerated in [6 NYCRR] Section 754.4(e)(1-4).
2. The proposed modification cannot be justified under any of the grounds enumerated in [6 NYCRR] Section 621.14(a)(1-4).
3. The Department has failed to follow its own regulations applicable to permit modification by not setting forth, in writing, the facts or reasons supporting its proposed modification.
4. Under the Department's own water quality standards applicable to the surface waters of the Peconic Bay, it set no limitations for nitrogen and its related compounds.
5. The proposed permit seeks to impose water quality standards contrary to the duly adopted regulations and thus constitutes an impermissible attempt to amend these regulations without complying with the requirements of State law applicable amending regulations.
6. The Town Board, as governing body, has incurred considerable expense in adopting a plan which adequately addresses the nitrate parameters of the facility. The plan provides for an increased financial base which will be sufficient to make upgrading the facility cost effective. Such upgrade would result in a decrease in nitrate impact. The restriction at this time to 180 [170, per the amended notice] lbs/day is self-defeating and thus irrational since it effectively precludes the District from achieving a usage level that will create a sufficient economic base to enable the plant to be upgraded and thereby result in less nitrate impact than the proposed permit limit when handling more gallons.
7. The plant's nitrate impact is minuscule when compared to other sources. Any increase in nitrates occurring from increased gallonage necessary to create the economic basis for upgrading the facility and thereby ultimately reduce nitrate loading would have no significant, demonstrable impact on the Bay. Thus the proposed modification of the existing permit is irrational, arbitrary, and without scientific basis.
8. The facility's operations and effluent discharge have not changed since the permit was issued. Its ongoing operating and permitted capacity was reviewed at that time. since the facility continues to operate as contemplated by its permit and in compliance with all water quality standards, the modification is without basis in fact or law.
9. The proposed modification will require the District to refuse hookups to property within the existing District as is presently required of such properties by the Suffolk County Department of Health Services.
10. The tax increase to homeowners within the RIVERHEAD SEWER DISTRICT will be confiscatory if the Department is required to build at this time the necessary improvements to comply with the modification and would not be approved by the Comptroller of the State of New York if submitted to that office.
11. Upon information and belief, the proposed modification has committed the Department to the Brown Tide Comprehensive Management Plan (BTCAMP) despite the fact that that plan, and the model contained therein, has not been duly adopted pursuant to State law and has no independent force and effect.
12. By purportedly adopting the BTCAMP finding and conclusions as its own, the Department of Environmental Conservation has improperly abrogated its policy and rule making jurisdiction and authority.
13. No official copy of the procedure utilized in the BTCAMP model is on file with the Secretary of State.
14. The commissioner, his employees and agents, have predetermined the issue of the instant permit modification in that the Department of Environmental Conservation has "committed" to this modification to the BTCAMP and the NEP.
15. Because of this "commitment" the Commissioner, his employees and agents, has prejudged the issues to be presented and are disqualified from adjudicating this permit modification.
16. Ultimately only the taxpayers of the RIVERHEAD SEWER DISTRICT will be required to fund the necessary improvements to achieve the combined goal of the BTCAMP and the Department which improvements are presently estimated to cost approximately $3,500,000 since the Department is requiring no regional or other funding to build the improvements to the treatment plant necessary to implement this goal to benefit a body of water at in excess of that portion influenced by the point source of the plant.
17. Alternatively, the RIVERHEAD SEWER DISTRICT should be permitted by the Department to cease serving the out of district facilities of the County of Suffolk located in Southampton, New York, so the District can provide service to in district facilities.
18. While purporting to only modify nitrates, the proposed modification effectively reduces the approved capacity from 1.3 million gallons to some 650 gallons; yet the plant was built and capital expenses incurred in reliance on the approval of the 1.3 million gallon capacity.
19. The limitation is a de facto, drastic reduction of the permitted capacity of the plant thereby modifying the permit without full notice and opportunity to be heard.
20. The present permit allows for approximately 330 lbs/day of nitrogen. No facts have changed to support such a drastic change in the permit.

At the issues conference, the Department Staff argued that several of the objections were legal questions that did not require testimony, were not applicable to the proposed modification or could be dismissed based on information which the Department Staff sought to present at the issues conference. The Department Staff stated that the objections should not automatically be adjudicated just because the permittee has a right to a hearing on the proposed modification, and that they were attempting to limit the number of issues. The Town opposed allowing any statements by the proposed witnesses, and these statements did not take place at the issues conference. A schedule was established for briefs concerning, among other things, paragraphs 3 through 5, 11 through 13 and 17 of the Town's objections. The last of these briefs was received by the Office of Hearings on June 12, 1996.

Paragraphs 1 and 2: As I stated at the issues conference, these two paragraphs are the outcome of the hearing, about whether the permit will be modified, and will be decided by the Commissioner.

These two paragraphs are essentially the issue to be adjudicated, while most of the other paragraphs of the Town's objections are among the subsidiary fact questions and arguments that, to the extent that they are relevant, may be brought into the hearing.

Paragraph 3 -- Notice: Paragraph 3 of the Town's objections contested the adequacy of the notice of proposed modification. The Town argued that the notice was defective since it only cited ECL Article 70 and 6 NYCRR Part 621 (Uniform Procedures), but not the sections of ECL 17 and 6 NYCRR 754 (SPDES) the Department Staff referred to it its brief, and that therefore the latter two citations were beyond the scope of the notice. The Town argued that the statement of "alleged facts" was defective for several reasons including that the notice did not make reference to dissolved oxygen although the Department Staff's brief argued that the modification was an appropriate action to achieve compliance with a water quality standard for dissolved oxygen. The Town asked that the proceeding be dismissed since the notice was defective.

The Department Staff and the Intervenors argued that the notice met the requirements for the contents of such notices in 6 NYCRR 621.14(b) (that the notice "state the alleged facts or conduct which appear to warrant the intended action") and that the permittee had been made aware of why the modification was being proposed and was able to contest it. They also identified the permittee's participation in correspondence and meetings with the Department Staff about the SPDES permit and the Town's participation in the Peconic Estuary Program as reasons why the Town had actual notice of the factual and legal issues in dispute. At the issues conference, the Department Staff provided the applicant with written statements and correspondence from two of its proposed witnesses and a third person regarding the studies related to the proposed modification and regarding how the proposed nitrogen limit was calculated [tr. 37, 126-157].

The June 6, 1995 notice of intent to modify the permit stated that:

Ruling: The notice of intent to modify the permit complies with the requirements of 6 NYCRR 621.14(b). The request that the proceeding be dismissed on the basis of a defective notice is denied.

Paragraphs 4, 5, 11, 12 and 13: Paragraphs 4 and 5 and paragraphs 11 through 13 of the Town's objections (quoted above) allege that the Department's water quality standards applicable to surface waters of Peconic Bay set no limitations for nitrogen and its related compounds, and that the Department is trying to impose various things as requirements without following procedures for rulemaking. In its brief, the Town requested that the proceeding be dismissed as a matter of law based on paragraphs 4 and 5 of its objections. The Town also argued that the Department cannot proceed with the proposed modification without first adopting "the 'no net increase' standard" as a regulation. The Department Staff argued that the Town's arguments in paragraphs 4, 5, 11, 12 and 13 do not present issues for adjudication and disposition.

Water quality standards applicable to the Peconic Bay estuary system, particularly Flanders Bay, were discussed in detail in the briefs of the Intervenors and the Department Staff. Notable among these are provisions applicable to SC and SA waters as found at 6 NYCRR 701.10 and 701.12 (best usages of these waters, and purposes for which the waters shall be suitable), 6 NYCRR 703.2 (narrative water quality standards for phosphorous and nitrogen applicable to class SC and class SA waters), and 6 NYCRR 703.3 (dissolved oxygen standards).

The Department Staff and the Intervenors have presented offers of proof regarding the interaction between nitrogen discharges and dissolved oxygen levels, including statements in the Brown Tide Comprehensive Assessment and Management Program Summary which was marked as an exhibit for identification at the issues conference. This summary discusses both the "brown tide" algal blooms and conventional water quality parameters including nitrogen.

The existing regulatory standards could provide a basis for imposing an effluent limit on nitrogen under a SPDES permit. Whether or not such an effluent limit should actually be imposed at this time on the Riverhead Sewage Treatment Plant is a question that will need to be decided based on the evidence presented in this hearing.

Information from the Brown Tide Comprehensive Assessment and Management Program, to the extent that it is relevant, could be part of the evidence in this proceeding. I will not necessarily exclude from the hearing testimony about the roles which witnesses may have had in the BTCAMP or the Peconic Estuary Program since this could be relevant to the weight to be given to the testimony and/or exhibits related to these programs.

Rulings: The request to dismiss the proceeding based on the Town's objections 4 and 5 is denied.

The Department Staff's use of information or recommendations from the BTCAMP or Peconic Estuary Program does not constitute a standard or a rule and need not be adopted as rule or regulation before this matter can proceed. Information related to the Department Staff's use of information from these programs may be relevant to the weight to be given to evidence and therefore the Town's assertions in objections 5, 11 and 12 will not be completely excluded from the hearing.

Objection 4 is a legal question and does not present issues for adjudication. The Department's existing regulations contain a narrative standard for nitrogen plus other standards which are relevant to the application of this standard. The result of applying these standards to the facts of the present case will be the ultimate outcome of this hearing (i.e., the Commissioner's decision on the proposed modification).

Objection 13 deals specifically with the lack of filing of the "BTCAMP model" with the Secretary of State. This objection will not be adjudicated since such a filing is not required. In addition, it does not appear to be in dispute that such a filing was not made.

Paragraph 17: This objection states that the Town should be allowed to cease serving the out of district facilities of the County of Suffolk. The Town argued that this would substantially reduce nitrogen loading. The Department Staff argued that the Town has cited no authority for why this would be under the Department's jurisdiction as opposed to being strictly a matter between the Town and the County.

The inputs to the plant (including, as discussed below, the question of a moratorium on new hookups) are part of the overall picture regarding the plant's operation and discharge. The Town has proposed ending service to the Suffolk County facilities as an alternative to the permit modification proposed by the Department. There is a dispute between the permittee and the Department Staff regarding this objection. The merits of this objection may be adjudicated in the hearing.

Ruling: Paragraph 17 of the Town's objections may be adjudicated in the hearing.

Paragraph 14 -- Recusal: Although this paragraph was not part of the briefs, it was discussed at the issues conference. The Town stated that they were not asking that I personally be recused, but that the Commissioner recuse himself and that if, as part of that, he decided that the matter should also not be handled by the Office of Hearings and Mediation Services, the Town would not have an objection to that. The Town requested that the decision on the proposed modification not be made by the Commissioner or any employee of the Commissioner, but by an unspecified independent outside arbiter.

This is a question that would not be decided by the Administrative Law Judge, and is not being decided in these rulings. I have, however, been authorized by the Assistant Commissioner for Hearings to proceed with the hearing without there being a determination on this objection.

Issues Proposed by the Intervenors

Imposing a lower effluent limit for nitrogen: The proposed permit modification would impose on the Riverhead sewage treatment plant an effluent limitation of 170 pounds per day for total nitrogen (30 day arithmetic mean). The Intervenors argued that although the proposed modification would be helpful, the nitrogen discharges from the plant must be limited even further in order to meet the water quality standard for dissolved oxygen. The Intervenors argued that the BTCAMP study concluded that the dissolved oxygen standard was being violated in Flanders Bay due to nitrogen input and that the plant was a leading cause of the violation, and that the permit modification must reduce nitrogen levels to a point where the dissolved oxygen standard is being met. The Town argued that under 6 NYCRR 624.4(c)(8) the Intervenors are precluded from asserting different issues from those raised by the Department.

The number which would be specified as the effluent limit for nitrogen is within the scope of the proposed modification. The Department Staff has the burden of proof to show the modification which it is proposing is supported by the preponderance of the evidence (6 NYCRR 624.9(b)(2)). Similarly, the Intervenors have the burden of proof to show that a lower number is supported by the preponderance of the evidence.

Ruling: The numerical value of effluent limit for nitrogen is within the scope of the proposed modification and will be an issue for adjudication.

Moratorium on additional sewer hookups: The Intervenors stated that as of 1992, nitrogen loading as already causing violation of the dissolved oxygen standard in Flanders Bay and that they believed that additional entities had been connected to the Riverhead plant since then and that more would be in the future. They argued that the problem could be solved by requiring an upgrade of the facility and by prohibiting further hook-ups to the facility. The Town argued that no moratorium was proposed in the notice of intent to modify the permit and that this could not be an issue.

The Town itself has raised an issue regarding inputs to the plant, specifically those from the Suffolk County facilities. The proposed issue of a moratorium on new connections is also part of the overall information on the plant's operation and discharge and on alternate means of limiting or reducing nitrogen discharges. The Department has, in a prior case involving a different sewage district, considered whether to impose a moratorium on new sewer connections and the appropriateness of imposing what was acknowledged to be a severe remedy (In the Matter of Orangetown Sewer District No. 2, Decision of the Commissioner, September 15, 1989).

Ruling: The question of whether a moratorium on sewer hook-ups to the Riverhead sewage treatment plant should be imposed as a means for limiting nitrogen discharges will be an issue for adjudication in the hearing. As with the prior issue (nitrogen effluent limit less than 170 pounds per day), the Intervenors would have the burden of proof to show that a moratorium is supported by the preponderance of the evidence.

Compliance with other water quality standards: The Intervenors argued that if the dissolved oxygen standards are not being met in the water body into which the plant discharges, it is possible that there may be violations of other water quality standards as well and the plant's discharges should be reviewed with regard to these standards and the existing water quality. They requested that the Department Staff present an offer of proof that the plant was in compliance with these standards, particularly the standards for coliform bacteria. The Town argued that this was outside the scope of the hearing. The Department Staff did not support or oppose including this proposed issue in the hearing, and has not provided for the record information on bacteria in the plant's discharge.

This proposed issue is not sufficiently related to the proposed permit modification that it could be adjudicated in a hearing on a Department-initiated modification (6 NYCRR 624.4(c)(8)). In addition, although the plant's existing permit requires monitoring of both fecal coliform and total coliform, the Intervenors have not submitted an information which would indicate that the plant's discharge may be causing a violation of the water quality standards for coliform bacteria. While their request that the Department Staff review other water quality standards with regard to the plant and its receiving water may be a worthwhile recommendation, the Intervenors have not raised an issue for adjudication in the present hearing regarding coliform or other additional standards.

Ruling: The Riverhead Sewage Treatment Plant's compliance with water quality standards for coliform bacteria, and other water quality standards aside form those related to nitrogen and dissolved oxygen, will not be adjudicated in the hearing.

PARTY STATUS

The Group for the South Fork, the Peconic Bay Estuary Program Citizens Advisory Council and the North Fork Environmental Council (the "Intervenors") were the only persons or organizations that requested party status.

Although the Intervenors support the proposed permit modification, they have raised an issue regarding whether the 170 pounds per day nitrogen limit is low enough and whether a moratorium on new sewer hookups should be imposed. Although their position is similar to that of Department Staff, it is not identical and, based on statements at the issues conference, it may diverge from that of the Department Staff as the hearing progresses, particularly with regard to the specific number proposed as the limit. The Intervenors have demonstrated an environmental interest in the proposed modification and have otherwise filed an acceptable petition for party status. They have already made a meaningful contribution to the record during the recent briefing.

Ruling: The Intervenors have met the requirements of 6 NYCRR 624.5(b) and (d) and are granted full party status in the hearing.

SETTLEMENT DISCUSSIONS AND THE DATE OF THIS RULING

The above ruling was completed on June 21, 1996. I intended to send it to the parties on that date, but on June 21, 1996, I received by fax a letter from the Department Staff which requested that I not release the issues ruling before July 1, 1996. The letter stated that a proposed settlement was going before the Riverhead Town Board on Monday, June 24, 1996 and that the Department Staff had requested that the settlement offer be rejected or accepted by the Town Board by July 1, 1996. The letter stated that the settlement offer was being faxed on June 21, 1996 to the Intervenors.

On June 24, 1996, I wrote to the Department Staff and agreed to wait until after July 1, 1996 to release the issues ruling. I also transmitted to the Department Staff, the Town and the Intervenors a copy of Organization and Delegation Memorandum 94- 13, regarding the procedures to be followed in situations where a stipulation resolves all or some of the issues in a hearing.

On July 1, 1996, Carolyn Zenk, Esq., counsel for the Intervenors, asked that the Intervenors be given additional time to review the proposed settlement and that a ruling on party status be made. I spoke later on July 1, 1996 with Louise Aja, Esq., counsel for the Department Staff, who stated that the Town had approved the settlement on June 28, 1996 and that she expected to have a copy signed by the Town and the Department Staff later today. She did not know whether the Intervenors would sign it.

I arranged for a conference phone call with Ms. Aja, Ms. Zenk and Frank Isler, Esq., counsel for the Town, which took place at 3 P.M. this afternoon. Ms. Zenk requested that there be a ruling on party status and a week within which to review the proposed settlement. There was a discussion of the Intervenor's role in the process in a hearing of this kind under 6 NYCRR Parts 621 and 624. I stated I would be sending the issues ruling to the parties by fax today and that their procedural arguments could be made in the appeals of the issues ruling, if they wished to appeal the ruling.

Organization and Delegation ("O&D") Memorandum 94-13 establishes procedures to be followed when permit hearings (as well as enforcement hearings) are settled by stipulations among the parties. It states, among other things, that, "Since a stipulation may occur before a determination of those who have party status, the term 'party,' as used in this context, includes persons who have applied for party status and who have not received a final denial or acceptance."

For a stipulation to resolve the present matter, it would need to be agreed to by the Town, the Department Staff and the Intervenors, unless the Commissioner were to grant an appeal of the present ruling and determine that the Intervenors would not be a party. While the Intervenors' request for party status was pending, and now that the Intervenors have been granted party status, they would be a part of the settlement process as discussed in O&D Memorandum 94-13.

The present proceeding was initiated by the Department Staff's notice of intent to modify the permit. A hearing began, subject to the procedures in 6 NYCRR Part 624. Although it was the Town which requested a hearing on the proposed modification, the action (i.e., the permit modification) is still in existence even if the Town no longer wants to go forward with a hearing. The Department Staff has not withdrawn the proposed modification, and additional entities (the Intervenors) have requested party status to participate. The hearing would not be ended by a stipulation among two of the three "parties" (as that term is used in O&D Memorandum 94-13), particularly where the third party would have been granted party status prior to approval of the settlement but for the Department Staff's request that the issues ruling not be released until today.

APPEALS

Pursuant to 6 NYCRR Subdivisions 624.6(e) and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.

Any appeals must be received at the office of the Commissioner no later than July 15, 1996, at the following address: Commissioner Michael D. Zagata, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233- 1010. Any responses to such appeals would need to be received by July 22, 1996, at the same address. The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner.

Any request for an adjustment to the appeal schedule must be made to Chief Administrative Law Judge Daniel E. Louis, at the Office of Hearings and Mediation Services address.

The hearing is presently scheduled to begin on August 5 through 9, 1996. Pursuant to 6 NYCRR 624.8(d)(7), there will be no adjournments of hearings during appeal except by permission of the ALJ.

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

Dated: July 1, 1996

TO: Louise M. Aja, Esq.

Frank A. Isler, Esq. Carolyn Zenk, Esq.

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