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New York, City of (SPDES) - Final Hearing Report, August 8, 1998

Final Hearing Report, August 8, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application to Renew the State Pollutant Discharge Elimination System (SPDES) Permits pursuant to ECL Article 17 and 6 NYCRR Parts 750 et seq. for New York City's 14 Publicly Owned Sewage Treatment Plants by

CITY OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL PROTECTION (NYCDEP)
APPLICANT

REVIEW OF THE PARTIES' STIPULATION REGARDING WHOLE EFFLUENT TOXICITY AND FINAL HEARING REPORT

DEC Numbers: SPDES Number:
2-6007-00025 NY 002 6191
2-6101-00023 NY 002 7073
2-6101-00025 NY 002 6204
2-6102-00005 NY 002 6166
2-6105-00009 NY 002 6212
2-6107-00004 NY 002 6182
2-6202-00007 NY 002 6247
2-6203-00005 NY 002 6131
2-6301-00008 NY 002 6158
2-6302-00012 NY 002 6239
2-6308-00021 NY 002 6115
2-6309-00003 NY 002 6221
2-6401-00012 NY 002 6107
2-6404-00065 NY 002 6174

(Ward's Island)
August 8, 1998

Proceedings

This proceeding concerns modifications to the State Pollutant Discharge Elimination System (SPDES) permits for New York City's 14 Water Pollution Control Plants (WPCP). Pursuant to Environmental Conservation Law (ECL) Article 17, and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 750 - 757, the Region 2 Staff of the NYS Department of Environmental Conservation (the Department Staff) renewed the City's 14 SPDES permits on September 27, 1988 without a hearing. In a decision dated April 17, 1989, however, the NYS Supreme Court, Queens County, directed the Department to hold a hearing, as provided by §757.2, for possible modification of the September 1988 permits (Interstate Sanitation Commissioner v. Jorling, et al., Index No. 16492/88, Justice Dunkin).

Since this hearing commenced, there have been numerous Rulings, and Interim Hearing Reports, as well as several Interim Decisions. The reader is referred to the following: (1) Issues Ruling of the Administrative Law Judge, April 20, 1990; (2) Commissioner's Interim Decision, January 31, 1991; (3) Commissioner's Second Interim Decision (with attached ALJ's Interim Hearing Report), July 16, 1991; (4) Supplemental Rulings of the ALJ, January 27, 1993; (5) Commissioner's Third Interim Decision, June 1, 1993; (6) Commissioner's Fourth Interim Decision (with attached ALJ's Interim Hearing Report), January 28, 1994; (7) Issues Rulings Concerning Floatables Abatement, October 25, 1995; (8) Issues Ruling Concerning Proposed Modification dated March 1996, July 17, 1996; (9) Commissioner's Fifth Interim Decision, October 7, 1996; Issues Ruling on Remaining Issues: (1) Whole Effluent Toxicity, (2) Flow Measurement, and (3) Plant Capacity, September 4, 1997; and (10) Deputy Commissioner's Decision dated April 16, 1998. These documents are incorporated into this Final Hearing Report by reference.

In the Decision dated April 16, 1998 concerning the captioned matter, Deputy Commissioner Crotty determined there were questions associated with the whole effluent toxicity (WET) issue that remained unresolved. The Decision remanded these questions to me for a hearing, but also encouraged the Parties to resolve these questions without a hearing.

During a conference call on May 15, 1998, the Parties explained that they had settled the whole effluent toxicity (WET) issues identified in the April 16, 1998 Decision. Although the New York City Department of Environmental Protection (NYCDEP) would continue to use synthetic dilution water for the WET analysis, NYCDEP agreed to do a parallel analysis using ambient water. The May 15, 1998 agreement included the identification of the locations and during which period of the tidal cycle the ambient samples would be collected for each of NYCDEP's 14 water pollution control plants (WPCP). After NYCDEP discussed this agreement with their engineering consultant, the Parties met again on June 22, 1998 to work out the details of when the WET analysis using ambient water would begin.

By letter dated July 31, 1998, NYCDEP's attorney, Jane M. Houdek, Esq., Assistant Corporation Counsel, provided a written summary of the settlement agreed upon by the Interstate Sanitation Commission, the River Keeper, Inc. (formerly known as the Hudson River Fishermen's Association), the Region 2 Staff from the NYS Department of Environmental Conservation, and the NYC Department of Environmental Protection. The letter further states that,

"beginning with the fall quarter of 1998, DEP will conduct four quarters of WET testing as described in the attached protocol. The parties agree that the City's implementation of the attached WET testing protocol does not require a modification of the City's SPDES permit."

A copy of Ms. Houdek's July 31, 1998 letter and the referenced protocol entitled, NYCDEP Protocol for Four Quarters of Testing Ambient Dilution Water for Whole Effluent Toxicity, are attached to this Report as Appendix A.

Disposition

I have carefully reviewed the stipulation in accordance with the DEC Commissioner's Organization and Delegation Memorandum #94-13, Effect of Stipulations on Decision-Making in Permit and Enforcement Hearings (May 5, 1994). It is my determination that the signed stipulation satisfactorily resolves the issues identified in the April 16, 1998 Decision regarding the protocol for the whole effluent toxicity testing required by NYCDEP's 14 SPDES permits. Accordingly, the Parties' acceptance of the stipulation attached to this Report concludes this administrative permit hearing.

/s/
Daniel P. O'Connell
Administrative Law Judgea
Dated: August 8, 1998
Albany, New York

To: Attached Service List

Appendix A: Ms. Houdek's July 31, 1998 letter, and the protocol entitled, NYCDEP Protocol for Four Quarters of Testing Ambient Dilution Water for Whole Effluent Toxicity.

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