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Jan 24, 2017 3:52 PMPublication: The Southampton Press

EPA Admonishes East Hampton Over Outlawed Cesspools, But Town Says It Has No Authority

Several Montauk properties have been approved, like Arbor, or are expected to see applications for improvements, like Duryeas, despite having decades-old cesspools as their waste systems. Michael Wright
Jan 24, 2017 4:05 PM

The federal 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 what sort of waste system a property employs.

“We may need to do a better job of determining if there is a large-capacity cesspool on a property,” Mr. Potter said. “Even if we do not have the power to impose changes, we should be demanding that information of the applicant. That became clear with the Arbor application.”

But water advocates say that opportunity is fast 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?”

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... nice timing by the EPA, congrats. They reached out to East Hampton right before Trump censored them - talk about under the wire!
By William Rodney (561), southampton on Jan 25, 17 10:11 AM
What censorship of the EPA? What are you talking about?
By ChrisDiPetta (37), on Jan 25, 17 3:55 PM
While not the most clearly written story, it seems that the EPA's issue is with the Suffolk County Department of Health, not East Hampton Town's regulatory boards -- or did I miss something?

Otherwise, the EPA (never mind what the Trump Administration is up to) is asking the Town's Planning Board and ZBA to assume activist roles, and that's in conflict with NYS guidelines.

By Frank Wheeler (1826), Northampton on Jan 25, 17 10:41 AM
1 member liked this comment
Suffolk County health dept is a LAUGH. They are behind the times and developers. Hampton Bays, Westhampton, and others have major redo's and still using ancient rules around our bays.
They want to let Local villages to make their own rules. Get rid of the patrons and redo the whole system.
East Hampton and Southampton pushed the button. If we don't have clean water the money will leave...
By knitter (1941), Southampton on Jan 25, 17 5:21 PM
The editor of 27east should really have done some bare minimum research before publishing this article. This is a CCOM red herring. I googled "EPA definition of large capacity cesspool" and immmediately found, on the EPA website, that any system with a septic tank is NOT a large capacity cesspool. Suffolk County has required septic tanks since 1972, over 45 years ago. Any commercial establishment (or residence) that has gotten a building permit in the last 45 years has had to install a septic ...more
By jperrier (53), Springs on Jan 26, 17 9:14 PM
JPerrier, please see "Table 11-2 Summary of Wastewater Improvement Needs by Need Type & Study Area" on pg. 51 of the East Hampton Comprehensive Wastewater Management Plan dated January 8th, 2014, specifically the column, "Cesspool Upgrades Likely Required." The document can be found on the Town's website at: http://ehamptonny.gov/documentcenter/view/1744
CCOM, DefendH2O and DPA reached out to the EPA precisely because upgrades from cesspool only to septic systems are NOT being required as a ...more
By Concerned Citizens of Montauk (2), Montauk on Jan 30, 17 4:53 PM
WOW - if the Town of East Hampton really wants to clean up its act the current administration and future administrations would pursue septic treatment facilities in Montauk and other hamlet centers, and establish individual tax districts for commercial entities, instead of offering no real solutions to a "problem" we all know exists. As a matter of fact, let's just keep dumping waste - in Montauk with "upgraded" systems, at the new Town-sponsored affordable housing project in Amagansett, and in ...more
By truthinfact (8), amagansett on Feb 1, 17 3:17 PM