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Letter II to Nys Dec

Letter II to Nys Dec

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11/09/2012

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ULSTER COUNTY ATTORNEY

BEATRICE HAVRANEK County Attorney 845-340-3685 KRISTIN A. GUMAER Assistant County Attorney 845-334-5402 SUSAN K. PLONSKI Assistant County Attorney/ Contract Manager 845-340-3441

240 Fair Street, PO Box 1800 Kingston, New York 12402 845-340-3685· Fax: 845-340-3691
MICHAEL P. HEIN County Executive

CLINTON

G. JOHNSON

First Assistant County Attorney

845-340-3685 WILLIAM N. CLOONAN Assistant County Attorney 845-340-3685 ROLAND A. BLOOMER Assistant County Attorney/ Assistant Contract Manager 845-331-2447

Service by facsimile or e-mail not accepted

July 13,2012 VIA UPS OVERNIGHT MAIL New York State Department of Environmental Conservation Division of Water, Bureau of Resource Management 625 Broadway Albany, New York 12233 Attn: Marc Gerstman, Executive Deputy Commissioner RE: In the Matter of Alleged Violations of Article 17 of the NYS Environmental Conservation Law of the State of New York, Section 750 et seq. of the Official Compilation of Codes, Rules and Regulations of the State of New York, and SPDES Permit # NY 0264652 (Cat Alum SPDES Permit) Order on Consent DEC Case No. D007-0001-11 Dear Mr. Gerstman: As you know, I am the County Attorney and, as such, represent the County of Ulster and its officers and employees. On July 10,2012, I submitted to you the first set of written comments regarding the above proceeding on behalf of The Honorable Michael P. Hein, County Executive of the County of Ulster. I reserved the County's right to submit further written comments up to and including 5:00 p.m. on July 16,2012, the extended deadline for submission of comments. The following comments represent further written comments on behalf of the Ulster County Executive. All reservoir operations affect downstream communities along the Lower Esopus Creek. This is true whether or not the New York City Department of Environmental Protection (hereinafter referred to as the "DEP") is releasing from the Ashokan Reservoir. Within New York City's water supply watershed, the City of New York showcases its programs and relationships with the watershed communities as a world-wide model of environmental stewardship. Unfortunately, this is not true for the Lower Esopus Creek which has become the

environmental victim of the actions of the DEP and the City of New York. It is both disturbing and unacceptable that the draft proposed Order on Consent, which is the subject of these comments, fails to adequately address the havoc reigned upon the Lower Esopus Creek, the County of Ulster, and the citizens of Ulster County by the DEP and City of New York. As addressed in my July 10,2012 comment letter to you, the County of Ulster has never been afforded the courtesy of participating in the settlement negotiations between the DEP and the New York State Department of Environmental Conservation (hereinafter referred to as the "DEC.") In fact, the DEP has already signed the Order on Consent. As such, it is the earnest hope that these comments, as well as any and all comments received by the DEC from the County of Ulster or anyone else, are not an exercise in futility. The Interim Release Protocol The Interim Release Protocol is not in full compliance with the State Environmental Quality Review Act (SEQRA) in that it assumes an outcome and lacks a comprehensive alternatives analysis. The Interim Release Protocol should be separated from the draft proposed Order on Consent, with the exception of the conservation releases, as it removes it from the SEQRA process and permits turbid releases which exceed New York State Water Quality Standards, and further fails to conform to the Clean Water Act. At the very least, the Order on Consent, as part of the Interim Release Protocol, should eliminate operational releases, set stricter turbidity limits for discharge mitigation releases, increase the amount of water for community releases, and provide a process for reviewing and amending the Interim Release Protocol at least semiannually so that new information can be incorporated therein in regards to the Ashokan Release Channel. The turbidity limit for discharge mitigation releases in the Interim Release Protocol is 300 NTU. This is too high. The level permitted under the Protocol should be in keeping with NYS water quality standards of "no visible contrast" or to a specific differential as is now done for the Shandaken Tunnel releases. The community releases should be increased to base flow releases at 65 MOD during the summer season (May 1 thru October 31) and 50 MOD in the winter season (November 1 thru April 30). These rates correspond with those proposed by the Lower Esopus Watershed Partnership (LEWP) as set forth in its July 28,2010 letter to Willie Janeway, DEC Director of Region 3, and which more accurately reflect the hydrologic conditions of the Esopus Creek. The DEP and the City of New York should acknowledge in the final Order on Consent that the Ashokan Release Channel constitutes an operating release works under 6 NYCRR Part 672-2.3; and the DEP and the City of New York will not object or oppose DEC modification of Part 672 in order to authorize community releases from the Ashokan Reservoir as DEC deems necessary pursuant to its authority under 6 NYCRR Part 672-2.3.

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Landowner

Assistance

As addressed in my comment letter of July 10,2012, monetary damages and any procedure for the payment of these damages to landowners should be made part of the final Order on Consent to compensate property owners, both public and private, that have suffered damages as a result of the actions of the DEP and the City of New York. Dramatic stream changes have taken place as a result of the turbid water releases and are continuing. Although the draft proposed Order on Consent sets aside funds for a "Lower Esopus Stream Management Plan Development" and for "Lower Esopus Stream Management Plan Implementation," the time between the onset of the study, the completion of the study, and the actual implementation of the plan will not provide any immediate relief for the landowners during the interim; and, it is more than likely that the conditions along the stream will continue and worsen during that time. The draft proposed Order on Consent does not provide for any interim relief to the stream-side landowners on the Lower Esopus Creek during that interim period to address, among other things, erosion control and streambank stabilization. Thus, the final Order on Consent should include assistance to landowners along the Lower Esopus Creek as long as necessary, and at least as long as the releases occur. The DEP and the City of New York have an established program, known as the Catskill Stream Buffer Initiative, to address such issues for landowners along the Upper Esopus Creek. This program provides technical and financial assistance to Upper Esopus Creek landowners that includes individual studies of their properties, streambank erosion mitigation, and other assistance. The final Order on Consent should make this program available to landowners along the Lower Esopus Creek. Extend the Filtration Avoidance Determination Benefits to Downstream Communities along the Lower Esopus Creek The Filtration Avoidance Determination (hereinafter referred to as the "FAD"), applies to certain watershed communities in the Catskill and Delaware watershed. The Upper Esopus Creek is within the watershed. The DEP provides funding and benefits under the FAD to those watershed communities. The same funding and benefits should be extended to the Lower Esopus Creek and the adjoining communities. The impacts of water supply operation extend to the Lower Esopus Creek; and, the responsibility, as required by the FAD, to engage and work with the community, should apply, as well, to the Lower Esopus Creek communities. Recreational Uses

The Lower Esopus is home to active recreational uses that include fishing, boating and public swimming areas such as community beaches in Marbletown and Saugerties. The draft proposed Order on Consent addresses the damages to the fishery associated with the releases in its requirement for funding a fish stocking program as an environmental benefit. Absent from the draft proposed Order on Consent is a requirement to address the losses and damages associated with other recreational uses. The final Order on Consent should include funding to 3

restore the Marbletown and Saugerties public beaches and provide additional funding to those municipalities for recreational access programs to mitigate the other negative effects of these releases. Technical Review Consultant for the Ashokan Releases Working Group The draft proposed Order on Consent sets aside, as an environmental benefit, the sum of Sixty Thousand Dollars ($60,000) to be available to the Ashokan Releases Working Group (hereinafter referred to as the "ARWG") for actual and reasonable costs of a technical review consultant. Aside from the issue of these funds being inadequate, the draft proposed Order on Consent requires that a Memorandum of Agreement be entered into by the DEP and the ARWG and that it contain a condition that no work produced by the consultant may be used in support of any litigation or administrative proceeding where the DEP or the City of New York is a party without the written consent of the DEP. Not only is this language a blatant abuse of the legal system and the public policy issues surrounding this issue, it is clear that its purpose is to thwart not only the ARWG from its use, but any other individual or entity from using the report or consultant in the course of litigation. This presents a significant due process issue that extends beyond the parties to the agreement and should be eliminated in its entirety from the draft proposed Order on Consent. There should be no limits, whatsoever, placed upon the ARWG or anyone else for use of the work. While the DEP should be required to finance the cost of providing the ARWG with a technical review consultant, this consultant and his or her report should be totally independent of the DEP and the City of New York. The provision requiring the DEP and the City of New York to provide a technical review consultant to the ARWG should remain in the draft proposed Order on Consent. However, instead of what is proposed, funding for this consultant should be paid to and administered by an entity independent of the DEP and the City of New York. The DEP Should Not Be Given Credit for Environmental Benefits Previously Committed to Perform According to the DEC's Environmental Benefit Projects Policy, projects that are unacceptable as environmental benefit projects include "projects that the respondent already intended to perform." An Environmental Benefit Project is defined in the Policy as "a project that an administrative respondent or judicial defendant (hereinafter "respondent") agrees to undertake as part of the settlement of an enforcement matter." The draft proposed Order on Consent contains "environmental benefits projects" that amount to Nine Hundred Fifty Thousand Dollars ($950,000) of the total penalties set forth in the draft proposed Order on Consent. The DEP already committed to two of the projects included in the draft proposed Order on Consent and which were termed as "environmental benefits projects," to wit: the stream gauges, shown as costing Three Hundred Fifty Thousand Dollars ($350,000) in the draft proposed Order on Consent, and the cost of the technical consultant for the ARWG shown as Sixty Thousand Dollars ($60,000) in the draft proposed Order on Consent. Thus, they should not be considered "environmental benefits." To do otherwise would be in direct violation of the DEC's own Policy. 4

While these environmental projects should remain in the final Order on Consent and the DEP and the City of New York should be required to finance them, they should be given no credit toward the civil penalties in the final Order on Consent for the cost of providing the funding or any assistance for these projects. There Should be Complete Transparency During the Entire Process Based upon the time lines set in the draft proposed Order on Consent, the final activity provided for therein is to occur no later that June 1, 2024 (the dredging completion date associated with the Kensico Reservoir). Thus, up to that time and any adjourned or extended time that may occur, the final Order on Consent should provide for complete transparency during the process. As such, the final Order on Consent should provide that hard and electronic copies of any and all documents provided to the DEC related to the Order on Consent and the FAD be provided to the County of Ulster for public dissemination within five (5) business days of receipt by the DEC. It should further provide that such documents be placed publically on the Internet with substantive and regular updates which allow the public meaningful opportunity to review the document. The Activities of the DEP and City of New York Require Additional Permits The violations of the DEP and the City of New York extend beyond those referenced in the draft proposed Order on Consent. In addition to the unnaturally timed releases of water from the Ashokan Reservoir, the collection, storage and manipulation of the turbid waters within the reservoir itself constitutes activities separate and apart from the permits required for the use of alum in the Kensico Reservoir. These activities result in a point source discharge and that violates New York State water quality standards, thereby requiring a separate State Pollution Discharge Elimination System (SPDES) permit under New York State Law and the Clean Water Act. As such, the draft proposed Order on Consent should require that the DEP and City of New York apply for and obtain a separate SPDES permit for these activities, and the procedure for this process should comply with all environmental laws and rules including SEQRA, which would require an alternatives analysis that examines alternatives to turbid water discharges rather than considering turbid releases as an alternative to alum use. Schedule of Compliance Cat Alum SPDES Permit - Elimination of Alum The draft proposed Order on Consent incorporates a Schedule of Compliance that includes references to both structural and nonstructural means for the "Elimination of Alum" contained in the Cat Alum SPDES permit. The draft proposed Order on Consent also requires and acknowledges that a modification of the Cat Alum SPDES permit must be sought. Part of the modification of the permit requirement is the preparation of a draft environmental impact statement that includes, in its scope, a "comparison of environmental impacts of the use of alum and subsequent floc deposition in Kensico Reservoir versus impacts to the Lower Esopus Creek 5

due to utilization of the Ashokan Release Channel." The final Order on Consent should remove the reference to elimination of alum requirements in the existing Cat Alum SPDES permit as this is prejudicial to the outcome of the environmental impact statement required in the draft proposed Order on Consent. In addition, the Structural Measures regarding the repair of the crane on the Ashokan Upper Gate Chamber have no bearing on the elimination of alum use and should stand on its own as part of the repairs needed to meet the conditions of the Interim Release Protocol and reduce the short term environmental impact to the Lower Esopus. Schedule of Compliance February 28, 2011, Turbidity Control Alternatives Analysis The draft proposed Order on Consent includes a requirement that the Turbidity Control Alternatives Analysis be updated based on newly available It is important to note that this analysis omits data past the year 2008. These when releases to the Lower Esopus occurred as a result of several significant February 28,2011, hydrological data. are the critical years hydrologic events.

The final Order on Consent should conclude that significant new hydrologic events have occurred and new data is available and require an immediate update of the Turbidity Control Alternatives Analysis that incorporates that data. Schedule of Compliance January 2008 Value Engineering Study - Catskill Turbidity Phase III The draft proposed Order on Consent fails to include or in any way recognize the January 2008, Value Engineering Study - Catskill Turbidity Phase III, which was prepared for the New York City Office of Management and Budget. Several of the alternatives in this Study have been incorporated into the February 28, 2011, Turbidity Control Alternatives Analysis. The Study also contains several alternatives that would appear to have the ability to significantly reduce the need for and improve the quality of releases to the Lower Esopus that were not included in the Turbidity Control Alternative Analysis. The failure to analyze turbidity control in relationship to the Lower Esopus should be corrected. The final Order on Consent should require a reexamination of the Value Engineering Study directed at the structural measures available to reduce the need for releases and the reduction in the duration and amount of turbidity loading in the Lower Esopus. The Civil Penalties The draft proposed Order on Consent provides for a civil penalty of One Million Five Hundred and Fifty Thousand Dollars ($1,550,000), of which approximately one third [Five Hundred Thousand Dollars ($500,000)] is suspended and being held in escrow to be returned to the City of New York if it meets certain milestones.

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Pursuant to §71-1929 of Environmental Conservation Law of the State of New York, both the DEP and the City of New York could be subject to a civil penalty of Thirty Seven Thousand Five Hundred Dollars ($37,500.00) per day for failure to comply with the sections of Environmental Conservation Law that are alleged in this proceeding. Not only would this apply to the violations attendant to the releases of water into the Ashokan Reservoir Release channel, but it would also apply to the failure to remove alum floc from the Kensico Reservoir. Release channel records for the Ashokan Reservoir reveal that beginning in March of 2006 and continuing up until the commencement of this enforcement proceeding, the DEP and the City of N ew York made releases into the Ashokan Reservoir Release channel on at least 410 separate days. Thus, the potential the civil penalties/fines for just this violation alone amount to Fifteen Million Three Hundred Seventy Five Thousand Dollars ($15,375,000.) Accordingly, the civil penalty in the draft proposed Order on Consent is woefully inadequate and can only be viewed as a "cost of doing business" by the DEP and the City of New York. The City of New York has spent billions of dollars in relation to its water supply system over the years. Thus, it is respectfully submitted that the civil penalties in the final Order on Consent should be no less than Ten Million Dollars ($10,000,000) and be used to finance environmental benefit projects and damage claims of property owners, both public and private. Finally, on June 19,2012, the Ulster County Legislature adopted Resolution No. 171 entitled, "Initial Comments Of The Ulster County Legislature To The New York State Department Of Environmental Conservation (DEC) On The Draft Consent Order With The City Of New York." That resolution was submitted to the DEC at the public forum it held on that date. A certified copy of that resolution is enclosed with this letter and incorporated herein to ensure that the resolution is made a part of the official record in this proceeding as well. Very truly yours,

BEA TRICE HAVRANEK County Attorney BH:kpc Enclosure cc: Hon. Michael P. Hein, Ulster County Executive (w/enc.) Dennis Doyle, Director, Ulster County Planning Department (w/enc.) March Gallagher, Deputy Director For Economic Development, Planning Dept. (w/enc.) Amanda LaValle, Coordinator, Ulster County Department of the Environment (w/enc.)

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s:\atty\bea's\DEP-DEC

Consent Order Additional Comments.07.15.12

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