EPA Chides Town About Waste

Feds criticize large cesspools

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Several Montauk properties, like Arbor restaurant, have been approved for renovation or expansion even though they may still have large-capacity cesspools. MICHAEL WRIGHT

The U.S. Environmental Protection Agency has informed East Hampton Town regulatory boards that approving development applications that allow large cesspools to continue to be used is a violation of federal law.

In a letter to the Town Planning

Board and Zoning Board of Appeals, EPA groundwater compliance chief Nicole Kraft told the two boards’ chairpersons that large cesspools were expressly prohibited from remaining in use after 2005 by the Safe Drinking Water Act and that any approval of applications that would employ such a system would be furthering an illegal circumstance.

“We have been made aware that there may be applications pending your approval that would allow continued violation of the SDWA,” Ms. Kraft wrote in October, asking that members of the board schedule a meeting with her agency to discuss the issue. “Please be advised that approving an application without the required upgrades allows facilities to violate federal law.”

Cesspools have been tagged as the most deleterious sanitary systems to water quality because they provide essentially no filtering or capture of human waste before it comes in contact with groundwater, where nitrogen is spread to freshwater ponds or tidal bays, feeding algae blooms. Septic tank-and-ring systems, which separate solids but allow liquids to filter back into groundwater, became the standard after 1975, though those too have now been identified as allowing more nitrogen to seep from waste into groundwater tables. Modern systems provide multiple phases of separation to reduce nitrogen but can cost $30,000 or more for commercial-grade systems.

The EPA banned the installation of new large capacity cesspools, which were common on commercial properties constructed prior to 1975, nationwide in 2000 and required that all existing such systems be “closed” by 2005.

The admonishment from the federal agency comes only now after environmental advocates notified the federal agency that they believe so-called large-capacity cesspools remained in use at a number of Montauk commercial properties that had recently received approvals from the town for redevelopment or expansion.

“Disturbingly, some of these establishments have sought in the past or are seeking currently … approvals for significant renovations and/or modifications to their structures without an upgrade to their sanitary systems,” four advocacy groups—Concerned Citizens of Montauk, Defend H2O, the Surfrider Foundation and the Ditch Plains Association—wrote to the EPA in September. “Regrettably, it appears that [the Suffolk County Department of Health] does not recognize the application of the federally mandated Clean Water Act legislation and grandfathers these illegal systems.”

The letter from the water quality advocates cited a list of Montauk properties that it suspects have large-capacity cesspools and have plans for expansion or renovations recently approved or in the queue, including Arbor restaurant, Cyril’s, and Rick’s Crabby Cowboy Cafe. They also warned that other properties are expected to see redevelopment projects in the near future, like Duryea’s, Ruschmeyer’s and Gurney’s, though the groups pointed out that most of Montauk’s commercial development took place prior to 1973 and therefore there are probably far more cesspools likely still in use.

In 2015, attorneys for billionaire investor Marc Rowan, who has purchased several Montauk properties in recent years, argued that plans for the renovation of what is now Arbor restaurant should not have to detail whether or not there is a large-capacity cesspool connected to the property’s sanitary systems, as local watchdogs suspected there was.

Kevin McAllister, head of Defend H20, asked in Planning Board hearings at the time that the board ask Arbor’s deep-pocketed owners to hire a certified engineer to examine the property and attest that a large-capacity cesspool did not lie beneath the restaurant.

“They just dismissed it,” Mr. McAllister recalled of the planners’ reaction to his suggestion. “I wish the town would embrace more stringent rules. There’s reluctance, and that’s a political decision, they don’t want to take this on. But they’re just copying the county—that’s who needs the spanking here.”

The Suffolk County Department of Health regulates wastewater flows for both residential and commercial properties countywide and the town’s regulatory boards have deferred to its findings on the issue of cesspools as well.

“The county is the preemptive authority when it comes to sanitary code, it’s their responsibility,” East Hampton Town Attorney Michael Sendlenski said. “There’s case law that says we can’t regulate such things.”

Mr. Sendlenski said that the county has recently started to hint that it might be moving toward allowing local municipalities to set their own, more stringent, demands on waste system upgrades.

The new Planning Board chairman, Job Potter, said he would like to see the Planning Board make more of an effort to at least confirm exactly whether a property has a large-capacity cesspool. “Even if we do not have the power to impose changes, we should be demanding that information of the applicant,” he said. “That became clear with the Arbor application.”

But water advocates say that opportunity is quickly slipping away, especially in Montauk.

“Montauk is going through a process of reinvestment, whereby there are upgrades being done to the tune of millions of dollars, and somewhere in those budgets there needs to be a fresh look at septics,” said Jeremy Samuelson, director of Concerned Citizens of Montauk, one of the groups that appealed to the EPA to admonish the town. “It’s hard to sit there and listen to someone say, ‘I don’t even want to be asked to prove to you that I meet minimum federal standards.’ Substitute fire suppression equipment for septics in that sentence—would we still be having the conversation?”