Town Hands Tied on Issue Of Illegally Large Cesspools

The Suffolk Department of Health Services apparently is the only local agency that can enforce an 11-year-old Environmental Protection Agency requirement that large-capacity cesspools are illegal and should be removed. 

The issue drew the attention of the East Hampton Town Planning Board on Nov. 2 as members reviewed a site plan for the Arbor restaurant property in Montauk. The restaurant is near three bodies of water: Fort Pond, Fort Pond Bay, and Tuthill Pond.

By a 4-to-3 vote, the applicant, Marc Rowan, who bought the property early this year, will not have to submit an engineer’s report certifying that the restaurant does not have illegal cesspools. Doing so was discussed at the board’s previous meeting, on Oct. 26, during which Kevin McAllister, who heads Defend H2O, an environmental organization, said the E.P.A. targets any business that has 20 or more customers a day who might flush toilets. 

The E.P.A. website reads: “A ban on existing large-capacity cesspools went into effect on April 5, 2005. If you have not yet closed your large-capacity cesspool, you must do so immediately. E.P.A. regulations require you to close your large-capacity cesspool in a way that ensures no contaminants could move from it to underground drinking water sources.” 

It was reported during that meeting that Norsic Sanitation Services, a Southampton company, had submitted a survey indicating multiple cesspools with a combined capacity of almost 17,000 gallons on the property. Tina Piette, representing Mr. Rowan, however, presented a second survey, this one from Hamptons Septic Services, that did not include cesspools. 

The planning board majority vote took its lead from the board’s attorney, John Jilnicki. As they began the discussion of the Arbor site plan, Reed Jones, the board’s chairman, asked Mr. Jilnicki for an opinion about cesspools. Mr. Jilnicki told the board that the Suffolk Health Department was the only agency that could act on illegal cesspools. He said the desire of some board members to learn and rule on what was actually at the site was “a good goal,” but, he said, “I frankly don’t think we have the authority.”

“How is this in the interest of good planning?” Kathleen Cunningham, one of the members, asked. “I don’t think we asked enough questions,” Job Potter said of the review that led to that moment. It became clear, as the discussion went around the table, that Mr. Potter and Ms. Cunningham, along with Patti Leber, were in the minority.

One member who voted with the majority expressed misgivings. “I defer to our counsel,” Ian Calder-Piedmonte said. Nevertheless, he expressed concern. “The E.P.A. clearly has a law against this,” he said, concluding that the town board should explore the possibility of allowing the planning board “to make sure there are no large-capacity cesspools.”

According to Kim Shaw, the town’s natural resources director, a survey of septic systems servicing businesses in the town had turned up at least 105 cesspools. 

As for the county department, it held a meeting with representatives of various local governments in Yaphank to discuss possible changes regarding septic systems on Oct. 25. East Hampton was not notified, according to the Planning Department. 

However, it was reported that the septic system at Rick’s Crabby Cowboy Café in Montauk was cited at the meeting in a discussion of grandfathering, or allowing outlawed systems to remain in place if they predated the regulations.