Rule Making to Implement Environmental Conservation Law Section 17-0826-a

NY-ADR

11/9/16 N.Y. St. Reg. ENV-26-16-00013-A
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 45
November 09, 2016
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
 
I.D No. ENV-26-16-00013-A
Filing No. 986
Filing Date. Oct. 20, 2016
Effective Date. Nov. 09, 2016
Rule Making to Implement Environmental Conservation Law Section 17-0826-a
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 621 and 750 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 1-0101(3)(b), 3-0301(1)(b), (t), (2)(m), 17-0303(3), 17-0803, 17-0804 and 17-0826-a
Subject:
Rule making to implement Environmental Conservation Law section 17-0826-a.
Purpose:
Implementation of the reporting, notification and recordkeeping requirements described in Environmental Conservation Law section 17-0826-a.
Substance of final rule:
The final rule revises provisions of 6 NYCRR Part 750 to implement ECL section 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK). Under SPRTK, publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (POSSs) are required to report untreated and partially treated sewage discharges to the New York State Department of Environmental Conservation (DEC) and the local health department, or if there is none, the New York State Department of Health, immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not need to be reported. SPRTK specifies the necessary minimum content of these two hour reports to the extent the information is knowable with existing systems and models. Furthermore, SPRTK requires POTWs and operators of POSSs to notify the chief elected official, or authorized designee, of the municipality in which the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality that may be affected of untreated and partially treated sewage discharges as soon as possible, but no later than four hours from discovery of the discharge. For discharges that may present a threat to public health, the same notification must also be provided to the general public within the same time frame through appropriate electronic media as determined by DEC. The rule making provisions to implement SPRTK are summarized below.
750-1.1
Subdivision (f) of section 750-1.1 is amended to reference POSS registrations which are the new regulatory mechanism for POSSs.
750-1.2
New definitions are added to section 750-1.2 to clarify the scope and meaning of the rule. Some paragraphs within subdivision (a) of this section are renumbered as a result of these new definitions. Paragraph (20) of subdivision (a) defines the term ‘Combined Sewer Overflow (CSO)’ and paragraph (21) of subdivision (a) defines the term ‘Combined Sewer System (CSS).’ SPRTK reporting and notification requirements apply to CSO discharges from CSSs to the extent these discharges are knowable with existing systems and models, so it is necessary to define these terms. The term ‘Publicly Owned Sewer System (POSS)’ is defined in paragraph (70) of subdivision (a). Under this definition, a ‘POSS’ means “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” The existing definition of ‘municipality’ in current 6 NYCRR 750-1.2(a)(51) applies to the new definition of ‘POSS’ and continues to apply to the current definition of ‘POTW’ which remains unchanged. Thus, both POTWs and POSSs include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The new definition of ‘POSS,’ however, distinguishes POSSs from POTWs because POTWs are defined to include sewers that discharge to the POTW only if those sewers are owned by the same municipality that owns the POTW. Finally, paragraphs (63) and (96) of subdivision (a) define the terms ‘partially treated sewage’ and ‘untreated sewage’ to specify the type of waste addressed by the rule. The new definition of ‘partially treated sewage’ replaces the definition of ‘partially treated’ since Part 750 only uses the term ‘partially treated’ when referring to sewage. The new definition for ‘partially treated sewage’ is at least as stringent as the previous definition of ‘partially treated’ and aligns with SPRTK’s goal to protect public health. The final rule revises the definitions of ‘untreated sewage’ and ‘partially treated sewage’ slightly from the previously proposed rule to clarify these terms.
750-1.22
The rule adds a new Section 750-1.22 to establish a registration program for POSSs and obligates owners and operators of these facilities to comply with specified reporting and notification requirements in amended Section 750-2.7. New Section 750-1.22 requires owners of existing POSSs to register the facility with DEC within 30 days from the effective date of the rule. This section also obligates owners of POSSs to obtain DEC approval and a new or amended registration before commencing construction of a new or modified POSS. Furthermore, this section requires owners of POSSs to notify DEC 30 days prior to a transfer in ownership or operation of the facility; establishes registration procedures regarding POSSs; and provides DEC authorized representatives with express authority to inspect POSSs and their records. Finally, this section requires owners and operators of POSSs to comply with the applicable reporting and notification provisions in subdivisions (b) and (d) of Section 750-2.7. Current Section 750-1.22 and subsequent sections of Subpart 750-1 are renumbered to accommodate this new section.
750-2.6
Subdivisions (a) and (b) of Section 750-2.6 are amended to specify that this section applies to SPDES permittees that are not POTWs. POSSs are only required to obtain registrations, not SPDES permits. Thus, the revisions make clear that the special reporting requirements in Section 750-2.6 continue to apply to non-POTW SPDES permittees (such as privately-owned commercial and industrial facilities), but that this section does not address POTWs or POSSs.
750-2.7
Subdivision (b) of section 750-2.7 is amended to implement the new reporting and notification obligations that apply to owners and operators of POTWs and POSSs.
Amended paragraph (b)(1) continues to limit two hour reporting for non-POTW SPDES permittees to discharges that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes. A small number of minor revisions have been made to this paragraph and Subparagraphs (i) through (v) to eliminate obsolete language and to clarify that the content of two hour reports filed by non-POTW SPDES permittees is the same as that for POTWs and POSSs.
Amended paragraph (b)(2) provides that POTWs and POSSs are in compliance with the rule’s electronic reporting and notification requirements if they register to use the DEC approved electronic media and submit timely and sufficient reports and notifications when required. The final rule also now clarifies in this paragraph that a CSO is considered untreated sewage for purposes of two hour reporting, four hour notifications and CSO advisories.
Amended subparagraph (b)(2)(i) requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and the local health department, or if there is none, the New York State Department of Health, immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not need to be reported. Clauses (a) through (e) of this subparagraph set forth the necessary content of the reports to the extent the information is knowable with existing systems and models. Consistent with SPRTK, clause (d) in the final rule now contains an exception for wet weather CSO discharges from the requirement to provide a brief description of the measures taken and planned to contain the discharge.
Amended clause (b)(2)(ii)(a) implements SPRTK’s four hour notification requirement with respect to municipalities. This provision requires owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality in which the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. However, this notification does not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of this clause, a ‘municipality’ means “a city, town or village” and an ‘adjoining municipality’ means “any municipality that is adjacent to the municipality in which the discharge occurred.”
Amended clause (b)(2)(ii)(b) implements SPRTK’s four hour notification requirement for the general public. This provision obligates owners and operators of POTWs and POSSs to notify the general public as soon as possible, but no later than four hours from discovery of discharges of untreated and partially treated sewage to surface water, except that this notification is not required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit.
Amended subparagraph (b)(2)(iii) of the final rule now provides that “[f]or combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, owners and operators of POTWs and POSSs must expeditiously issue advisories to the general public through appropriate electronic media as determined by the department when, based on actual rainfall data or predictive models, enough rain has fallen that combined sewer overflows may discharge.” Under this subparagraph, these advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Amended Subdivision (b), Subparagraph (2)(iv) requires owners and operators of POTWs and POSSs to submit daily reports for each day that the discharge continues after the date that the initial discharge report is made. On the day the discharge terminates, a termination report may be made in lieu of the daily report. Daily and termination reports must be made within 24 hours of the previous report and include the same content as the initial discharge report, except that the DEC may modify or waive daily and termination reports on a case by case basis if acceptable alternate reporting methods are available. Daily and termination reports are not required for wet weather CSO events.
Subdivision (c) is amended to eliminate 24 hour oral reporting by POTW SPDES permittees of those discharges that are covered by the new two hour reporting. The other existing 24 hour oral reporting requirements for POTWs that are not affected by SPRTK have been left unchanged. Consistent with this approach, the final rule relocates subparagraph (1)(ii) to subparagraph (2)(i) within this subdivision, while excepting sewage discharges already reported within two hours. Furthermore, the current 24 hour oral reporting requirements for non-POTW SPDES permittees are not impacted by SPRTK and remain the same.
Subdivision (d) is amended to extend the requirement to file a five-day written incident report to owners and operators of POSSs; provides that these reports must be submitted to DEC (rather than the regional water engineer specifically); and requires that such reports be submitted on a form prescribed by DEC. Furthermore, this subdivision provides that DEC may waive the requirement for a five-day written incident report for both SPDES permittees and POSSs in situations where applicable reporting requirements have been satisfied. The final rule also now expressly specifies that five day written incident reports are not required for wet weather CSOs that are in compliance with a DEC approved plan or permit.
750-2.8
New Subdivision (g) is added to Section 750-2.8 to set forth operation and maintenance requirements for POSSs.
750-2.10
New Subdivision (j) is added to Section 750-2.10 to provide that owners of new or modified POSSs must comply with the registration requirements of Section 750.1.22 before construction and connection to any existing POTW or POSS.
Other Revisions
Various United States Environmental Protection Agency guidance documents and federal regulations are listed as references in current section 750-1.24. The rule renumbers this section to be section 750-1.25. Consequently, the rule also amends the various provisions throughout Subpart 750-1, Subpart 750-2, and Part 621 that cross reference this section to denote the proper renumbered section. In addition, the headings of Subpart 750-1 and 750-2 are amended to reference POSS Registrations. The Table of Contents for Subpart 750-1 is also amended to reflect the addition of new section 750-1.22 and renumbering of subsequent sections of this Subpart. Furthermore, the Table of Contents for Subpart 750-2 is amended to modify the heading language for sections 750-2.6 and 750-2.7 to clarify the scope of the rule making. This heading language is also amended at the locations where these sections appear in the regulations.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 750-1.1, 750-1.2, 750-1.22, 750-2.7 and 750-2.8.
Text of rule and any required statements and analyses may be obtained from:
Robert J. Simson, New York State Department of Environmental Conservation, 625 Broadway, 4th Floor, Albany, NY 12233-3505, (518) 402-8271, email: [email protected]
Summary of Revised Regulatory Impact Statement
1. Statutory authority. The rule is authorized by Environmental Conservation Law (ECL) 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK), which took effect on May 1, 2013 and expressly directs the Department of Environmental Conservation (DEC) to promulgate regulations that are necessary to implement this statute (ECL 17-0826-a (2), (4)). In addition to the specific statutory authority for the rule contained in SPRTK, DEC has general rule making authority pursuant to ECL 3-0301(2)(m) to effectuate the purposes of the ECL and authority to promulgate regulations with respect to the SPDES program in ECL 17-0303(3), 17-0803 and 17-0804.
SPRTK requires publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (POSSs) to report untreated and partially treated sewage discharges to DEC and the local health department, or if there is none, the New York State Department of Health (NYSDOH) immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not have to be reported. Under existing regulations, two hour reporting is limited to discharges by State Pollutant Discharge Elimination System (SPDES) permittees (consisting primarily of POTWs and privately-owned commercial and industrial facilities) that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes. Therefore, it is necessary to revise the regulations to be consistent with the new expansive two hour reporting obligation. SPRTK also requires POTWs and operators of POSSs to notify the chief elected official of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges as soon as possible, but no later than four hours from discovering the discharge. The general public must also be notified within the same timeframe of any discharges that may present a public health threat. The rule implements the new reporting and notification obligations through language that aligns with SPRTK.
The rule defines a ‘POSS’ as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality” because under current regulations those sewer systems that discharge to a POTW owned by the same municipality are considered part of the POTW and are covered by the SPDES permit for the POTW. The rule requires owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs are obligated to properly operate and maintain their facilities; file five day written incident reports; and allow DEC to conduct inspections and copy records.
2. Legislative objectives. The rule accords with the public policy objectives that the Legislature sought to advance by enacting SPRTK. One public policy objective of the Legislature was to protect the public health and the environment. Untreated and partially treated sewage contains pathogens that can cause acute illnesses.
3. Needs and benefits. The purpose of the rule is to implement ECL 17-0826-a which is intended to facilitate prompt responses to untreated and partially treated sewage discharges by state and local authorities and inform the public of these discharges so that they may avoid exposure. The rule helps protect the public health and environment by obligating owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities immediately, but in no case later than two hours from discovery of the discharge and for each day until the discharge terminates, irrespective of the area impacted by the discharge. The rule also requires owners and operators of POTWs and POSSs to notify the municipality where the discharge occurred and adjoining municipalities that may be affected as soon as possible, but no later than four hours from discovery of surface water discharges. The same notification must also be made within the same timeframe to the general public for surface water discharges. Furthermore, the rule accords with the legislative objective to bring POSSs into DEC’s regulatory program by requiring registrations for POSSs.
The rule does not obligate municipalities to upgrade the infrastructure of POTWs and POSSs or install monitoring equipment because SPRTK expressly limits reporting and notification requirements to discharges that are “knowable with existing systems and models” (ECL 17-0826-a (1)). The rule, however, does require owners and operators of POTWs and POSSs in specified situations to expeditiously issue CSO advisories. These advisories may be made on a waterbody basis.
Sewage discharge reports may be used by DEC to make decisions regarding closing of shellfish lands and prohibiting shellfish activities. DEC may also use reported information to take enforcement action against wastewater utilities, seeking penalties and permanent corrective measures. Furthermore, NYSDOH and local health departments may use reported information to assess the potential impact on public and private water supplies and to make determinations about regulating bathing beaches.
The rule is necessary to implement SPRTK’s reporting and notification requirements and to establish a registration program for POSSs. The rule will benefit the public health and the environment by obligating owners and operators of POTWs and POSSs to report and disclose untreated and partially treated sewage discharges.
4. Costs. Some municipalities that have POTWs or POSSs (or their contractors) may need to upgrade their computer systems at a cost of approximately $1,000 to comply with the rule’s electronic reporting and notification provisions and incur employee expenses to comply with the rule at the average pay rate for a POTW or POSS operator in the locality. Some local health departments are also expected to incur expenses of approximately $1,000 to upgrade their computer systems as well as minimal annual expenses associated with employee services. Furthermore, DEC will need to incur expenses to develop the electronic media to be used by owners and operators of POTWs and POSSs to carry out the rule’s electronic reporting and notification requirements. DEC has currently selected the NY-ALERT system maintained by the Department of Homeland Security and Emergency Services (DHSES) for this purpose. The necessary upgrade to NY-ALERT is expected to cost DEC approximately $50,000. This estimate was supplied by Buffalo Computer Graphics, the NY-ALERT consultant for DHSES. Moreover, NYS Information Technology Services estimates that DEC will need to spend approximately $125,000 to upgrade its own computer systems so that it may post reported information expeditiously to its website as required by SPRTK. This rule imposes no cost on POTWs and POSSs to develop CSO reporting systems.
5. Local government mandates. The rule requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities immediately, but in no case later than two hours from discovery of the discharge, irrespective of the area impacted by the discharge, except partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. POTWs and POSSs include systems that are owned by “a county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.”
The rule also obligates owners and operators of POTWs and POSSs to notify the chief elected official of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge and provides that these entities must also notify the general public of surface water discharges within the same timeframe. As with the two hour reporting requirement, four hour notifications will not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification, the rule defines ‘municipality’ to mean “a city, town or village,” and an ‘adjoining municipality’ to be “any municipality that is adjacent to the municipality in which the discharge occurred.” Furthermore, the rule requires owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Finally, the rule obligates owners and operators of POSSs to file five day written incident reports; properly operate and maintain their facilities; and allow DEC to conduct inspections and copy records.
6. Paperwork. The rule requires POTWs and POSSs to use the Department approved form of electronic media (currently NY-ALERT) to carry out all of the electronic reporting and notification provisions described in new 6 NYCRR 750-2.7(b)(2)(i)-(iv). Registrations for POSSs, five day written incident reports, and notifications of a change in POSS ownership or operation need to be completed on forms prescribed by or acceptable to DEC. The rule’s reporting, notification and paperwork requirements are necessary to implement SPRTK which expressly mandates two hour reporting and four hour notifications and establishes POSSs as a new group of regulated entities.
7. Duplication. Under existing regulations, SPDES permittees are only required to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery if the discharge would affect a bathing area during the bathing season, shellfishing or a public drinking water intake, whereas untreated and partially treated sewage discharges affecting other areas must be orally reported to DEC, in most instances, within 24 hours of discovery (6 NYCRR 750-2.7(b), (c)). Under the rule, two hour reporting by owners and operators of POTWs and POSSs generally applies to all untreated and partially treated sewage discharges that have been discovered, irrespective of the area impacted by the discharge. The rule prevents duplication by eliminating 24 hour oral reporting by POTW SPDES permittees of those discharges currently described in 6 NYCRR 750-2.7(c) that will now be covered by the new two hour reporting. NY-ALERT eliminates the current need to report separately to regulatory agencies listed in the POTW permit by replacing telephone and paper reporting with a single NY-ALERT report.
8. Alternatives. DEC considered requiring owners of POSSs to obtain SPDES permits rather than registrations. This alternative was rejected because registrations are sufficient to implement SPRTK’s requirements for POSSs. DEC also considered requiring municipalities to develop their own systems to comply with SPRTK. This alternative was also rejected due to the many benefits of NY-ALERT. NY-ALERT will be easy for owners and operators of POTWs and POSSs to use and will allow them to satisfy all of the rule’s electronic reporting and notification obligations at the same time through a common system. By using NY-ALERT, DEC will be able to track discharges, control computer system security, maintain data quality and satisfy its statutory obligations efficiently. NY-ALERT will also save municipalities the expense of developing their own systems. If DEC switches from NY-ALERT to another electronic system in the future, it will seek a system that provides similar attributes.
9. Federal standards. The rule exceeds federal standards for the same or similar subject areas. The rule extends the requirement to file five day written incident reports to owners and operators of POSSs which are not currently subject to federal or state five day reporting (40 CFR 122.41(l)(6); 6 NYCRR 750-2.7(d)). Furthermore, there is no federal requirement that owners and operators of POTWs and POSSs report untreated and partially treated sewage discharges to the government within two hours of discovery or that they notify the municipality where the discharge occurred, adjoining municipalities that may be affected, or the general public of discharges within four hours of discovery. Federal law also does not provide for expeditious issuance of CSO advisories by owners and operators of POTWs and POSSs. Finally, owners of POSSs are not required by federal law to obtain registrations or inform the government of a change in facility ownership or operation. The rule exceeds federal standards because SPRTK mandates the specific reporting and notification requirements imposed by this rule.
10. Compliance schedule. The rule takes effect upon filing of the rule with the secretary of state and publication of the notice of adoption in the State Register. Regulated entities will be able to comply with the rule as soon as it takes effect.
Revised Regulatory Flexibility Analysis
1. Effect of rule. All counties, towns, cities, villages, district corporations, special improvement districts, sewer authorities and agencies thereof in the state that own or operate a publicly owned treatment works (POTW) or a publicly owned sewer system (POSS) will be subject to the requirements of this rule. There are approximately 620 POTWs that will be affected, and the Department of Environmental Conservation (DEC) estimates that there are approximately 300 POSSs that will be affected. The rule extends regulatory oversight to POSSs as DEC does not currently regulate POSSs through its SPDES program. Cities, towns and villages that have POTWs or POSSs or that adjoin these entities will be beneficially affected by the rule as they will benefit from the notification requirements imposed by the rule. No small businesses will be affected by this rule.
2. Compliance requirements. The rule requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to the DEC and the local health department, or if there is none, the New York State Department of Health immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not have to be reported. Owners and operators of POTWs and POSSs will also be required to continue reporting for each day after the initial report is made until the discharge terminates, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the daily report. The definition of ‘municipality’ in the current regulations (6 NYCRR 750-1.2 (a) (51)) will apply to the rule’s definition of ‘POSS’ and continue to apply to the existing definition of ‘POTW’ which has been left unchanged. Thus, both POTWs and POSSs will include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The rule, however, distinguishes a POSS from a POTW by defining a POSS as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” In contrast, a POTW does not include a municipally owned sewer system unless the sewer system that discharges to the POTW is owned by the same municipality. The rule also describes the necessary content of two hour reports to the extent knowable with existing systems and models as prescribed by Environmental Conservation Law (ECL) 17-0826-a (1) (a)-(f).
Furthermore, the rule obligates owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. The municipal notification requirement does not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification requirement, a ‘municipality’ is limited to mean “a city, town or village” and an ‘adjoining municipality’ means “a municipality that is adjacent to the municipality in which the discharge occurred.”
In addition, the rule requires owners and operators of POTWs and POSSs to notify the general public as soon as possible, but no later than four hours from discovery of discharges of untreated and partially treated sewage to surface water, except that no notification is required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit.
The rule does not require POTWs or POSSs to upgrade their infrastructure or install monitoring equipment. However, for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, the rule requires owners and operators of POTWs and POSSs to expeditiously issue advisories to the general public through appropriate electronic media as determined by the department when, based on actual rainfall data or predictive models, enough rain has fallen that combined sewer overflows may discharge. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Under the rule, owners of POSSs need to obtain registrations for these facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs are required to properly operate and maintain their facilities; file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); and allow DEC to conduct inspections and copy records.
3. Professional services. Municipalities that own POTWs and POSSs may need to employ professional services to comply with the rule if existing employees are not sufficient to handle these duties. The services needed under the rule consist of two hour reporting and four hour notification of untreated and partially treated sewage discharges by owners and operators of POTWs and POSSs; continued reporting by owners and operators of POTWs and POSSs for each day after the initial report is made until the discharge terminates; expeditious advisories to the public by owners and operators of POTWs and POSSs regarding certain combined sewer overflows; filing five day written incident reports by owners and operators of POSSs (as currently required for POTW SPDES permittees and other SPDES permittees); registering of POSSs; and notifying DEC of a change in ownership or operation of POSSs.
4. Compliance costs. There may be some initial capital costs to municipalities (or their contractors) to comply with the rule. These costs would consist of upgrades to computer systems to meet the rule’s electronic reporting and notification requirements if existing computer systems are not adequate. It is estimated that the cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule would be a single expenditure of about $1,000. Approximately 140 smaller municipalities in rural areas (or their contractors) will need to upgrade their computer systems to comply with the rule. It may also be necessary for some municipalities to hire additional employees or to extend the work hours of current employees on an annual basis to comply with the rule if existing staff are unable to handle these duties during current work hours. The pay rate of a qualified employee to handle the duties associated with the rule is estimated to be $34.80 to $60.85 per hour. Some local health departments are also expected to incur expenses of approximately $1,000 to upgrade their computer systems as well as minimal annual expenses associated with employee services.
There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable sanitary sewer overflow events per year at a de minimis cost for reporting and record keeping and that 570 of these POTWs and POSSs will be located in smaller rural municipalities. Some communities, however, are expected to have a considerable number of combined sewer overflow events each year. The rule, however, imposes no cost on POTWs and POSSs to develop CSO reporting systems. DEC based the above labor costs on use of the department approved alert system that will notify DEC, NYSDOH, local health departments, elected officials, adjoining municipalities, and the general public. The rule requires that POTWs and POSSs use the department approved form of electronic media (currently NY-ALERT) to carry out all of the rule’s electronic reporting and notification requirements. The department acknowledges that initial capital costs and annual costs will vary depending on the municipality and the circumstances regarding each sewage release event.
5. Economic and technological feasibility. Compliance with the rule is expected to be feasible for local governments both economically and technologically. It is expected that local governments will have the ability to finance the costs associated with the rule. Two hour reporting to DEC and health authorities under the rule (as well as daily and termination reports) will be accomplished by electronic entry of information into the NY-ALERT system which will forward the entered information to DEC and health authorities. The NY-ALERT system will also accommodate four hour notification to the chief elected official of the municipality where the discharge occurred, adjoining municipalities that may be affected and the general public. The NY-ALERT system will not be technologically complex to use and will not require substantial upgrades to the existing computer systems of local governments. If DEC switches to a system other than NY-ALERT in the future, it will seek a system that provides similar attributes.
6. Minimizing adverse impact. The rule is designed to minimize adverse economic impacts to local governments within the context of the statutory mandate. The timeframes for two hour reporting and four hour notification in the rule match the timeframes set forth in the enabling statute (Environmental Conservation Law (ECL) section 17-0826-a). There are not expected to be any significant costs to local governments to comply with the rule. It is expected that local governments will be able to use existing computer systems to comply with the rule without needing substantial upgrades to these systems. The approaches for minimizing adverse economic impact suggested in SAPA 202-b (1) and other similar approaches were considered, but ECL 17-0826-a does not provide for exemptions from coverage, or for differing compliance or reporting requirements or timetables, based upon the resources of the local government. Therefore, no such approaches are contained in the rule. Nevertheless, the rule is written and will be implemented in a manner that minimizes adverse economic impacts to local governments within the parameters of the statutory authority.
7. Small business and local government participation. DEC has complied with SAPA 202 (b) (6) by assuring that small businesses and local governments have had an opportunity to participate in the rule making process. This occurred through posting notice of the proposed rule making on the DEC website; maintaining a public website informing public and private interests of the impact of the rule; and through interaction with owners and operators of POTWs and POSSs, environmental groups, and others. DEC also held Water Management Advisory Committee (WMAC) meetings on the rule which were attended by various stakeholders. Furthermore, the proposed rule was published in the State Register and the public was provided with an opportunity to comment on the proposed rule. The Department has reviewed the comments received and has completed an Assessment of Public Comments.
8. For rules that either establish or modify a violation or penalties associated with a violation. The entities regulated by the rule will have the ability to satisfy the requirements of the rule and thereby prevent the imposition of penalties as soon as the rule takes effect. No cure period or opportunity for ameliorative action beyond the language already contained in the rule is necessary to provide regulated entities with the ability to immediately comply with the rule.
Revised Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas. The rule will apply to all towns and villages in rural areas throughout the state that have publicly owned treatment works (POTWs) or publicly owned sewer systems (POSSs) or that adjoin communities that have POTWs or POSSs.
2. Reporting, recordkeeping and other compliance requirements; and professional services. The rule requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to the New York State Department of Environmental Conservation (DEC) and the local health department, or if there is none, the New York State Department of Health immediately, but in no case later than two hours from discovery of the discharge, except partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not have to be reported. Owners and operators of POTWs and POSSs also need to continue reporting for each day after the initial report is made until the discharge terminates, except that on the day the discharge terminates, a report documenting termination of the previously reported discharge may be made in lieu of the daily report. Daily and termination reports must be made within 24 hours of the previous report. The definition of ‘municipality’ in the existing regulations (6 NYCRR 750-1.2 (a) (51)) will apply to the rule’s definition of ‘POSS’ and continue to apply to the current definition of ‘POTW’ which has been left unchanged. Thus, both POTWs and POSSs will include systems that are owned by a “county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof.” The rule, however, distinguishes a POSS from a POTW by defining a POSS as “a sewer system owned by a municipality and which discharges to a POTW owned by another municipality.” In contrast, a POTW does not include a municipally owned sewer system unless the sewer system that discharges to the POTW is owned by the same municipality. The rule also describes the necessary content of two hour reports to the extent knowable with existing systems and models as prescribed by Environmental Conservation Law (ECL) 17-0826-a (1) (a)-(f).
Furthermore, the rule obligates owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and the chief elected official, or authorized designee, of any adjoining municipality that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. The municipal notification requirement does not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification requirement, the rule defines a ‘municipality’ to be “a city, town or village” and an ‘adjoining municipality’ to mean “a municipality that is adjacent to the municipality in which the discharge occurred.”
In addition, the rule requires owners and operators of POTWs and POSSs to notify the general public as soon as possible, but no later than four hours from discovery of discharges of untreated and partially treated sewage to surface water, except that no notification is required for partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit.
The rule does not require POTWs or POSSs to upgrade their infrastructure or install monitoring equipment. However, for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, the rule requires owners and operators of POTWs and POSSs to expeditiously issue advisories to the general public through appropriate electronic media as determined by the department when, based on actual rainfall data or predictive models, enough rain has fallen that combined sewer overflows may discharge. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.
Finally, the rule establishes a registration program for POSSs; requires owners and operators of POSSs to properly operate and maintain their facilities; obligates owners and operators of POSSs to file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); directs owners of POSSs to notify DEC of a change in ownership or operation of their facilities; and provides that DEC has authority to inspect POSSs and copy records. It may be necessary for municipalities in rural areas to employ professional services to carry out the responsibilities associated with the rule if existing staff are insufficient to handle these duties.
3. Costs. There may be some initial capital costs to municipalities or their contractors (including those in rural areas) to comply with the rule. These costs would consist of upgrades to computer systems to comply with the rule’s electronic reporting and notification requirements if existing computer systems are not adequate. It is estimated that the cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule would be a single expenditure of about $1,000. Approximately 140 municipalities (or their contractors) will need to upgrade their computer systems to comply with the rule, all of which are located in rural areas. It may also be necessary for some municipalities to hire additional employees or to extend the work hours of current employees on an annual basis to comply with the rule if existing staff are unable to handle these duties during current work hours. The rule imposes two hour reporting and four hour notification requirements on owners and operators of POTWs and POSSs (along with daily and termination reports); requires POTWs and POSSs to issue advisories for certain combined sewer overflows; establishes a registration program for POSSs and obligates them to file five day written incident reports; and requires owners of POSSs to notify DEC of a change in ownership or operation of the facility. The pay rate of an employee to handle the duties associated with the rule is estimated to be $34.80 to $60.85 per hour. Some local health departments are also expected to incur expenses of approximately $1,000 to upgrade their computer systems as well as minimal annual expenses associated with employee services.
There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable sanitary sewer overflow events per year at a de minimis cost for reporting and record keeping and that 570 of these POTWs and POSSs will be located in rural areas. Some communities, however, are expected to have a considerable number of combined sewer overflow events each year. The rule, however, imposes no cost on POTWs and POSSs to develop CSO reporting systems. DEC based the above labor costs on use of the department approved alert system that will notify DEC, NYSDOH, local health departments, elected officials, adjoining municipalities, and the general public. The rule requires that POTWs and POSSs use the department approved form of electronic media (currently NY-ALERT) to carry out all of the rule’s electronic reporting and notification requirements. The department acknowledges that initial capital costs and annual costs will vary depending on the municipality, including those in rural areas, and the circumstances regarding each sewage release event.
4. Minimizing adverse impact. There are no adverse environmental, public health or other impacts to rural areas associated with the rule. The rule imposes the same compliance, reporting and notification requirements (and associated timeframes) upon all owners and operators of POTWs and POSSs statewide. The rule is being carried out in this manner because the enabling legislation, ECL section 17-0826-a, does not distinguish between POTWs and POSSs located in rural areas and those located elsewhere. The approaches suggested by SAPA 202-bb (2) and other similar approaches were considered, but the statutory authority does not provide for exemptions and imposes the same requirements and timetables on all POTWs and POSSs throughout the state irrespective of their location.
5. Rural area participation. DEC complied with SAPA 202-bb (7) by providing public and private interests in rural areas with the opportunity to participate in the rule making process. This occurred through posting notice of the proposed rulemaking on the DEC website; maintaining a public website informing public and private interests of the impact of the rule; and through interaction with owners and operators of POTWs and POSSs, environmental groups, and others. The Department also held Water Management Advisory Committee (WMAC) meetings on the rule which were attended by various stakeholders. Furthermore, notice of the proposed rule was published in the State Register and the public was provided with an opportunity to comment on the proposed rule. The Department has reviewed the comments received and has completed an Assessment of Public Comments.
Revised Job Impact Statement
The rule will not have any substantial adverse impact on jobs or employment opportunities as apparent from the rule’s nature and purpose. The rule reiterates and implements the requirements set forth in ECL section 17-0826-a (the Sewage Pollution Right to Know Act) and establishes a registration program for publicly owned sewer systems. As evident from its subject matter, the rule will not have any adverse impact on jobs or employment opportunities as the new requirements will not hinder jobs or employment opportunities, but rather could necessitate the hiring of additional personnel or the extension of work hours for current employees to meet the requirements of the rule.
Assessment of Public Comment
Introduction
In June of 2015, the New York State Department of Environmental Conservation (“DEC”) filed a Notice of Proposed Rulemaking to revise provisions of 6 NYCRR Parts 750 and 621 to implement ECL 17-0826-a, known as the Sewage Pollution Right to Know Act (“SPRTK”). DEC accepted public comments from June 17, 2015 until the close of business on August 3, 2015. DEC re-filed the identical proposed rule on June 13, 2016 and accepted additional public comments from June 29, 2016 until the close of business on August 15, 2016.
The Assessment of Public Comments responds to all substantive comments received during both public comment periods. Changes were made to the proposed rule based upon comments received. The changes made are non-substantive and do not require a revised or new rule making. DEC recognizes the time, effort, and dedication taken by the individuals and groups who have participated in this process.
This is a Summary of the full Assessment of Public Comments which can be found at the DEC website: http://www.dec.ny.gov/regulations/39559.html. The comments have been consolidated and grouped by subject category.
I. CSO Reporting Requirements
A. Wet Weather CSO Reporting
Comments
A number of comments were received regarding wet weather CSO reporting and whether or not such reporting should be required under the rule.
Response
Consistent with SPRTK, the final rule requires CSOs to be reported by POTWs and POSSs immediately, but in no case later than two hours from discovery of the discharge. Likewise, four hour notifications to municipalities and the general public include CSOs. The final rule as modified in response to comments also requires expeditious issuance of CSO advisories by POTWs and POSSs based upon actual rainfall data or predictive models in situations where there is no monitoring equipment to detect CSOs when they may occur. These advisories may be made on a waterbody basis.
II. Implementation of the Law
A. Common Electronic Reporting System
Comments
Several commenters urged DEC to mandate use of the same reporting system to satisfy all of the rule’s electronic reporting and notification requirements. Other commenters noted the difficulty associated with keeping track of the contact information for municipalities that are entitled to be notified of untreated and partially treated sewage discharges.
Response
In response to these comments, the rule has been changed to require use of the DEC approved electronic system (currently NY-Alert) for all of the rule’s electronic reporting and notification requirements. In addition, the final rule now expressly provides that POTWs and POSSs are in compliance with the rule’s electronic reporting and notification requirements if they register to use the DEC approved electronic system and submit timely and sufficient reports and notifications when required. NY-Alert has been developed so that anyone can sign up to receive alerts without charge. Therefore, it is unnecessary to obligate POTWs and POSSs to keep track of the contact information for municipalities.
B. Registration Program for POSSs
Comments
Some commenters wanted clarification whether the rule required POSSs to obtain registrations rather than SPDES permits. Commenters also wanted to ensure that POSSs obtained the required registrations.
Response
POSSs are only required to obtain registrations, not SPDES permits (See, new 750-1.22). POSS operation and maintenance requirements have been relocated to new 750-2.8(g). The final rule revises the headings of 6 NYCRR Subparts 750-1 and 750-2 to reference POSS registrations. DEC has determined that 98% of POTWs and an estimated 70% POSSs have registered with DEC to be authorized to report using NY-Alert.
C. Scope of Reporting Requirements
Comments
Some comments raised questions about what precise sewage releases needed to be reported citing examples of various scenarios and asking for clarification.
Response
Under SPRTK and these regulations, all untreated and partially treated sewage discharges to surface and ground water, irrespective of volume, must be reported immediately, but in no case later than two hours from discovery of the discharge, except that partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not need to be reported. The final rule clarifies that CSOs are considered to be untreated sewage for purposes of § 750-2.7 and that they are subject to two hour reporting and four hour notifications. The modified provision regarding CSO advisories also applies to those CSOs for which real-time telemetered discharge monitoring and detection does not exist. See, new 750-2.7(b)(2)(iii).
D. Implementation Costs
Comments
Some commenters asserted that DEC’s assessment of the costs was too low, especially for employee services necessary to satisfy the requirements of the rule.
Response
DEC’s assessment was based upon the average treatment plant operator hourly wage ($34.80 to $60.85 per hour) and the estimated time for reporting each SSO event. DEC estimates that POTWs and POSSs will have, on average, two SSO events per year. DEC acknowledges that some communities with combined sewer systems will have a considerable number CSO events each year and that the pay rate for a qualified individual to report these events will be comparable. Costs will vary based upon the municipality and circumstances associated with each sewage release event. There is no charge to use NY-Alert, but some regulated entities may also need to incur expenses of about $1,000 to purchase computers to use NY-Alert.
E. Enforcement
Comments
Some commenters wanted to know how penalties would be assessed for those that violated the new regulations.
Response
ECL Article 71, Title 19 contains penalty provisions under the law that apply to violations of SPRTK and the new regulations. DEC will refer to applicable enforcement guidance when pursuing enforcement.
III. Draft Regulations and Process
A. Steps Taken to Contain the Discharge
Comments
Commenters pointed out that under SPRTK, there is no requirement to report the steps taken to contain the discharge if the discharge is a wet weather combined sewer overflow discharge.
Response
The rule has been revised in response to these comments and now aligns more closely with SPRTK.
B. Timeframe for Reports and Notifications
Comments
Some commenters indicated that the language in the proposed rule should be revised to include the words “immediately, but in no case later than” for two hour reporting and “as soon as possible, but no later than” with respect to four hour notifications to match SPRTK.
Response
In response to these comments, the rule has been revised to include the above language.
C. Daily and Termination Reports
Comments
DEC received several comments about daily and termination reports. Issues raised by the comments included: CSOs should be exempted; who could make these reports; the timeframe for making reports; authority for the requirement; burdens associated with these reports; and concern that the public could misinterpret reports.
Response
In response to the comments, the final rule now specifies that daily and termination reports are not required for wet weather CSO events and that these reports must be made within 24 hours of the previous report. Daily and termination reports may be made by any authorized notifier and the notifier does not need to be the same person that made the initial discharge report or a previous daily report. Daily and termination reports are consistent with DEC’s authority to promulgate rules and regulations that are necessary to implement SPRTK. Although there is some burden associated with these reports, DEC believes the reports provide an important benefit to DEC, health authorities and the general public since they track the status of a discharge until it terminates. The New York State Department of Health (“DOH”) and local health departments will assess the public health risk.
D. Volume of the Discharge
Comments
Some commenters asserted that there should be a minimum volume for the reporting of untreated and partially treated sewage discharges.
Response
DEC considered these comments, but decided to leave the rule unchanged in this regard because SPRTK does not specify a minimum volume. DEC also consulted with DOH regarding this aspect of the rule and it was decided not to specify a minimum volume since even a small volume may present some public health threat.
E. Five Day Written Incident Reports
Comments
Some comments pointed out that there is no requirement that five day written incident reports be made for wet weather combined sewer overflow events.
Response
DEC agrees that under the prior version of 6 NYCRR 750-2.7(b)-(d) there is no requirement to file a five day written incident report for wet weather combined sewer overflows in accordance with a DEC approved plan or permit and that SPRTK does not change this aspect of the law. The final rule expressly clarifies that five day written incident reports are not required for wet weather CSO events that are in compliance with a DEC approved plan or permit. See, revised 750-2.7(d).
Comments
Some commenters stated that five day written incident reports should not be required if termination reports are required.
Response
DEC has not eliminated the requirement to file five day written incident reports. Termination reports do not have a legal certification statement. Under the final rule, DEC may waive five day written incident reports in certain circumstances.
IV. Clarification of Definitions
A. “Adjoining Municipality”
Comments
A number of commenters indicated that they believed that the scope of the municipal notification requirement was too narrow and urged DEC to extend the notification requirement to all potentially impacted downstream communities and media outlets. Other organizations commenting on behalf of the regulated community felt that the definition was too broad and that a notification should not be required for an upstream adjacent community, but rather only for downstream adjacent communities in the flow path of a sewage discharge.
Response
SPRTK requires notification to adjoining municipalities “that may be affected.” Consistent with SPRTK, the final regulations add the words “that may be affected.” The definition of “adjoining municipality” in the final rule has not been changed from the definition previously proposed in 750-2.7(b)(2)(ii)(a). Although only adjacent municipalities that may be affected by a surface water discharge must be notified, anyone including downstream communities that are not adjacent to the municipality where the discharge occurred and the media may sign up to receive alerts at no charge.
B. “Discharge”
Comments
Some commenters stated that clarification was needed regarding definition of the term “discharge.”
Response
DEC believes that the definition of “discharge” in 6 NYCRR 750- 1.2(a)(26), re-numbered to be 750-1.2(a)(28), is clear and has left this definition unchanged.
C. “Partially Treated Sewage” and “Untreated Sewage”
Comments
Some comments questioned the meaning of the definitions of “partially treated sewage” and “untreated sewage.”
Response
DEC has revised the definitions of “partially treated sewage” and “untreated sewage” to clarify the meaning of these terms.
D. Impact of Definition of “Partially Treated Sewage”
Comments
Some commenters expressed concern about the previously proposed definition of “partially treated sewage.” SPRTK does not require reporting for “partially treated sewage discharged directly from a POTW that is in compliance with a department approved plan or permit.” These commenters indicated concern that any type of treatment, such as chlorination in the collection system, could have the unintended consequence of rendering a discharge occurring before the treatment plant something other than raw sewage, thereby placing it beyond the scope of SPRTK reporting.
Response
The final rule revises the definition of “partially treated sewage” to mean “sewage that is diverted around any portion of the treatment plant of a sewage treatment works after it enters the treatment plant.” Furthermore, the final rule adds language to 750-2.7(b)(2) explaining that a CSO is considered to be untreated sewage for purposes of the requirement to make two hour reports, four hour notifications, and CSO advisories. This eliminates the concern raised by the comment by clarifying that a discharge before the treatment plant is considered untreated sewage rather than partially treated sewage even if there is some treatment in the collection system.
End of Document