Opn. No. ( 1978 )

David J. Gilmartin, Esq. Town Attorney, Southampton

This is in reply to your letter in which you ask for an opinion as to "whether a town may provide a Scavenger Waste Treatment Facility under the provisions of Town Law Sec. 221". In telephone conversations, you advised this office that the purpose of the proposed Scavenger Waste Treatment Facility is to accept and treat pumped septic tank wastes.

Town Law, § 221, entitled "Refuse disposal plants in certain towns", provides that:

"the town board may provide for the collection and disposition of garbage, ashes, rubbish and other waste matter in such town, and for that purpose may construct, operate and maintain refuse disposal or incinerator plants" (emphasis ours).

Thus, the answer to your question is dependent on whether pumped septic tank wastes constitute "other waste matter" within the purview of Town Law, § 221.

While the phrase "other waste matter" is not defined in the Town Law, it is well settled that, under the ejusdem generis rule of statutory construction, the general language of a statute ("other waste matter") must be read in conjunction with the specific phrases ("garbage, ashes, rubbish") which precede the general language (Mtr. of Konver v.Procaccino, 45 A.D.2d 551, 553 [3rd Dept., 1974]; McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 239, subd. [b]). Thus, the phrase "other waste matter" must be construed to refer to other solid wastes.

In the latter respect, it is significant that the specific refuse disposal wastes referred to in Town Law, § 221 — "garbage, ashes, rubbish" — are all included within the broad definition of "Solid wastes" set forth in Environmental Conservation Law, § 27-0701 (1) and that "sludges from * * * water control facilities" is also included within such definition.

We are advised by the State Department of Environmental Conservation that pumped septic tank wastes include the accumulation of "sludge" and liquid wastes resulting from deposition in the septic tank (see "Manual of Instruction for Sewage Treatment Plant Operators", prepared by the New York State Department of Health, Chap. 5). "Sludge" is defined in the rules of the State Department of Environmental Conservation as "the accumulated semisolid suspension of settled solids deposited from waste-waters or other fluids" (6 NYCRR § 360.1 [c] [27]). In view of the foregoing, it cannot be doubted that the pumped septic tank wastes which would be treated by a Town scavenger waste treatment facility constitute "other waste matter" within the purview of Town Law, §221.

Accordingly, it is my opinion that a Town may provide for a scavenger waste treatment facility under the provisions of Town Law, § 221 authorizing a town to provide for disposition of "other waste matter".

However, it must be noted that Environmental Conservation Law, §27-0701 (2) defines any plant or facility for solid waste disposal as a "solid waste management facility". Therefore, the proposed Town facility would require approval of the New York State Department of Environmental Conservation prior to its construction and operation. Environmental Conservation Law, § 27-0707 (2).