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New York, City of (SPDES) - 5th Interim Decision, October 7, 1996

5th Interim Decision, October 7, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

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)

Case No. 0026131

FIFTH INTERIM DECISION

October 7, 1996

FIFTH INTERIM DECISION OF THE COMMISSIONER

The Environmental Defense Fund ("EDF") has appealed to the Commissioner from Administrative Law Judge ("ALJ") Daniel P. O'Connell's July 17, 1996 Issues Ruling Concerning Proposed Modification dated March 1996 in this proceeding. The ALJ concluded that there are no issues for adjudication. His ruling approves the issuance of a proposed Modification to the June 26, 1992 Order on Consent on control of discharges to waters of the State from Combined Sewer Overflows ("CSOs") in New York City. The proposed Modification to that Order (the 1992 "CSO Abatement Order") deals with a change in certain interim measures being imposed upon the City of New York's Department of Environmental Protection ("DEP") to abate and control discharges of floatable solids from the City's combined sewer system ("CSS") pending the development and implementation of long term measures designed to eliminate discharges of floatable solids from CSOs during wet weather. The 1992 CSO Abatement Order's interim or "short-term" measures for floatables control required the City to survey and clean catch basins, to determine whether a catch basin hoodA "catch basin hood" or "hood" is a cast-iron devise placed over the sewer outlet in a catch basin, so that the storm water draining into the sewer is drawn from below the elevation of the sewer pipe, thereby preventing floating solids from leaving the basin and entering the sewers. was in place, to boom and skim floatables from certain CSO outlets, to install skimmer boats to collect floatables, and to take additional measures to implement other short-term measures. The proposed Modification establishes a specific program to inventory and replace missing catch basin hoods in designated areas of the City.

When the 1992 CSO Abatement Order was first issued, two intervening parties, the Interstate Sanitation Commission ("ISC") and EDF, objected. They contended that in addition to the work required by the Order, the City should also be required to:

  1. Conduct an "enhanced" street sweeping program;
  2. Undertake the long-term CSO Abatement program on a shorter schedule than specified;
  3. Pay additional stipulated penalties; and
  4. Make the CSO Abatement Order (an enforcement order) part of the SPDES permits for the City's sewage treatment plants.

The ALJ then assigned to this matterALJ Andrew S. Pearlstein, who has since left State service. ruled on these objections in January, 1993,See Supplemental Rulings of the ALJ, January 27, 1993. and concluded that ISC had raised an issue for adjudication as to whether an enhanced street sweeping program could effectively and economically reduce floatable discharges from CSOs pending implementation of long-term "Track Two" measures to eliminate floatable discharges.Under the 1992 CSO Abatement Order, other measures, so-called "Track One" measures, are being developed to control BOD and coliform discharges from the City's 450 CSOs. The Track One and Track Two programs will be integrated, and the Track Two measures will be designed to control those floatable and other solids discharges not adequately controlled by Track One. The ALJ's Ruling was affirmed by the Commissioner's Third Interim Decision of June 1, 1993 in this matter. In that Interim Decision the Commissioner also upheld the ALJ's refusal to expand the use of stipulated penalties. That decision also agreed that notice of any modification to the CSO Abatement Order would be publicly noticed as a permit modification. However, it should be made clear that the CSO Abatement Order and this modification to it are enforcement orders, and not permit conditions; the SPDES permits note that the CSO Abatement Order governs the City's obligations for its CSO program. The Third Interim Decision also held that while interim measures will not achieve complete control of floatables discharges, the interim measures adopted should include all measures that are effective in terms of removal, cost and the environmental and other benefits associated with greater degrees of removal. Therefore, the Commissioner affirmed the ALJ's determination to hold a hearing on enhanced street sweeping as a means of obtaining more effective floatables control during the interim period, pursuant to ISC's request.

A hearing commenced in June 1994 on enhanced street sweeping as a means of meaningful further floatables reduction. By that time, the City had begun to inventory its catch basins, as the CSO Abatement Order specified, and the City had learned that catch basin hoods were missing from an estimated 57% of the City's 93,000 catch basins. This was a surprise and revelation to the DEP, as at the time it entered into the 1992 CSO Abatement Order the lack of hoods was not believed to have been nearly as great. The City's testimony at the street sweeping hearing suggested that the cost of enhanced sweeping (claimed to be $256 million/year) would yield benefits claimed to be in the order of only $4.6 million/year. Testimony to the contrary was not offered, and the parties agreed to adjourn the proceeding, pending negotiations between the City and DEC on a related DEC-initiated enforcement proceeding, which alleged in essence that the City had failed to implement adequately its obligation under the 1992 CSO Abatement Order to survey catch basins and replace missing hoods as needed.

The March 1996 Modification to the 1992 CSO Abatement Order is the product of those negotiations. In essence, the Modification provides that the City will inspect and replace hoods in specific areas of the City, selected to yield the most cost-effective floatable reductions. The interim floatables abatement programs as modified, together with the skimmer boats, booms, and the interim measures are expected to reduce floatable discharges from CSOs by some 60 to 65%, an amount in excess of the "roughly 50%" reduction contemplated at Paragraph 15 of the 1992 CSO Abatement Order.

The March 1996 Modification was developed following a prior proposed Modification dated June 1995, to which objections were raised by EPA as well as the Interstate Sanitation Commission and the Environmental Defense Fund. The March 1996 modification is more rigorous than the June 1995 proposal. USEPA and ISC support it. Only EDF has appealed from the ALJ's recommendation that the March 1996 proposal be adopted.

EDF's Appeal

EDF's appeal argues that the March 1996 modification will allow water quality standards to be violated; EDF further contends that floatables discharges could be reduced by even more than the modification contemplates, and could be reduced more economically than the City proposes.

Water Quantity Standards

EDF argues that the Modification fails to assure that all floatables discharges will be eliminated. Therefore, EDF argues, the Modification should be rejected as being inconsistent with attainment of water quality standards. However, EDF's argument conveniently ignores the reality that the proposed Modification is dealing with an alteration to an interim program, designed to minimize floatables discharges on a cost effective interim basis, pending development and implementation of the City's long term CSO pollution abatement program intended to achieve water quality standards, including the criteria for floatable solids as well as others, such as coliform bacteria and dissolved oxygen levels in the receiving waters. EDF's water quality standards argument is rejected for the above reasons and those given by the ALJ's Report. The City's program is consistent with EPA strategy and guidance on CSO control. I further conclude that it is consistent with Article 17 of the Environmental Conservation Law.

Abatement Level

The 1992 CSO Abatement Order contemplated that "roughly 50%" of the floatable solids then being discharged could be eliminated if the interim, short-term measures program to be undertaken prior to the time that long term--and more effective--controls could be designed and put into place. The short term program requires booming and netting at the end of certain CSO outfalls, to capture floatable solids and prevent their release to receiving waters. Also, skimmer boats have been purchased and are operated to capture released floatable solids.

The floatables pilot study conducted pursuant to the 1992 CSO Abatement Order suggested, among other things, that greater attention by the City to catch basin inspection and hood replacement could achieve cost-effective interim reduction in discharges of floatables. The Department's 1994 enforcement complaint, the suspension of the street sweeping hearing, and the Modification to the CSO Abatement Order here under consideration seek to achieve those reductions.

EDF argues that even greater interim reduction is necessary. For example, it has urged the adoption of filter and net technologies. However, the ALJ, City, and Staff dismiss these measures as impractical. While I encourage the City to be alert to cost-effective and cost-effective measures to keep floating solids from being discharged, I cannot accept EDF's suggestion that this record warrants my mandating that filter and net technologies be mandated, or be the subject of further adjudicatory hearings. Rather, the City should focus on implementing the long term programs as rapidly as possible, and is expected to adhere consistently to the interim abatement programs, as herein modified.

The Street Sweeping Hearing

In light of this decision and Modifications to the 1992 CSO Abatement Order, the Commissioner's Third Interim Decision of June 1, 1993 is hereby modified to the extent that the hearing on enhanced street sweeping is hereby, and shall be, terminated, without prejudice.

Conclusion

For the reasons set forth above, and as stated by the ALJ in his report, EDF's appeal is dismissed. The ALJ's Issues Rulings Concerning Floatables Abatement dated July 17, 1996 is affirmed in all respects.

For the New York State Department of Environmental Conservation

/s/
By: Michael D. Zagata,
Commissioner
Albany, New York
October 7, 1996

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