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New York, City of (SPDES - Wards Island) - Ruling, October 25, 1995

Ruling, October 25, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application to Renew the State Pollutant Discharge Elimination System (SPDES) Permit
for New York City's 14 publicly owned Sewage Treatment Plants

- by -

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

ISSUES RULINGS
CONCERNING FLOATABLES
ABATEMENT

Summary

These rulings address the topic of untreated discharges from combined sewer overflows (CSOs). Consistent with the Commissioner's Third Interim Decision, the New York City Department of Environmental Protection (NYCDEP) published a Notice of Proposed Modification to the June 1992 CSO Abatement Order which provided a public comment period and an opportunity to request a hearing. The Office of Hearings received no comments about the Modification other than from the Interstate Sanitation Commission (ISC) and the Environmental Defense Fund (EDF), who are already Parties in this proceeding. Only ISC and EDF requested a hearing. Consequently, these rulings address the issues asserted by these Parties at the August 30, 1995, Issues Conference. For the reasons discussed below, there are no issues for adjudication concerning the proposed Modification to the CSO Abatement Order. The CSO Abatement Order and the Modification resolve all issues associated with untreated discharges from combined sewer outfalls.

Proceedings

This proceeding concerns modifications to the State Pollutant Discharge Elimination System (SPDES) permits for New York City's 14 sewage treatment plants. 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 New York State 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 New York State 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 Commission v. Jorling, et al, Index No. 16492/88, Justice Dunkin).

The SPDES permits issued by the Department Staff in September 1988 required NYCDEP to design and implement programs to abate CSO discharges. Combined sewer overflow discharges occur when stormwater flows exceed sewage treatment plant capacity. The discharges include untreated sewage and storm water. During overflow events, pollutants are released in liquid form, and as floatable, suspended, or settleable solids.

NYCDEP, however, did not meet the schedule in the permits for designing and implementing the CSO abatement programs. Consequently, the Department Staff initiated an enforcement action. An Order on Consent, referred to as the June 1992 CSO Abatement Order, modified the original schedule in the 1988 SPDES permits, and resolved the enforcement action. A copy of the CSO Abatement Order is attached to these rulings as Appendix A.

In July 1994, the Department issued a Notice of Violation which alleged that NYCDEP had violated the terms of the CSO Abatement Order by not completing the catch basin survey and hood replacement programs by September 1993. In June 1995, NYCDEP and the Department agreed to settle the Notice of Violation by modifying the CSO Abatement Order. According to the Department Staff and NYCDEP, the proposed Modification to the CSO Abatement Order resolves the Notice of Violation. ISC and EDF, however, object to the Modification. A copy of the Modification is attached to these rulings as Appendix B.

After providing an opportunity to review the proposed Modification, Administrative Law Judge Daniel P. O'Connell convened an Issues Conference on August 30, 1995 at the Department's Region 2 Offices. The purpose of the Conference was to consider ISC's and EDF's objections to the Modification and their proposed issues for adjudication concerning floatables abatement. The Office of Hearings received the stenographic transcript of the Issues Conference on October 3, 1995. The record of the Issues Conference closed on October 13, 1995 with the passing of the public comment period for the proposed Modification.

The CSO Abatement Order and the proposed Modification discussed in these rulings are being considered within the context of this permit hearing because these two enforcement documents modify conditions in the September 1988 SPDES permits.

Notice of Modification

In supplemental rulings dated January 27, 1993, the ALJ This matter was originally assigned to ALJ Andrew S. Pearlstein, and subsequently reassigned to ALJ O'Connell in October 1994. recommended that the procedures provided in 6 NYCRR Part 753 should apply to any change to the schedules outlined in the June 1992 CSO Abatement Order. Part 753 applies to SPDES permit applications, and requires public notice by publication and direct notice to interested parties as well as an opportunity for a hearing.

The ALJ's recommendation was based on EDF's assertion that the September 1988 permits should include the terms of the CSO Abatement Order either by reference, or as permit conditions because the Abatement Order modified those conditions. In the Third Interim Decision dated June 1, 1993, the Commissioner accepted this recommendation and ordered its incorporation into the CSO Abatement Order.

Consequently, NYCDEP published a Notice of Proposed Modification to the June 1992 CSO Abatement Order (the Notice). The Notice provided until October 13, 1995 for members of the public to comment about the proposed Modification and to request a hearing.

Only ISC and EDF commented about the Modification and requested a hearing. Consequently, the issues discussed below are those proposed by ISC and EDF.

RULINGS ON PROPOSED ISSUES FOR ADJUDICATION

Stipulated Penalties

The principal objection by ISC and EDF to the proposed Modification is the absence of stipulated civil penalties in the Modification. ISC and EDF want the Modification to include civil penalties that NYCDEP would pay if NYCDEP violated the terms of the Modification in the future.

The Intervenors argued that the proposed Modification resulted from NYCDEP's blatant disregard of the schedule in the CSO Abatement Order. To avoid repeating the past, ISC and EDF contended that stipulated penalties in the Modification are necessary to encourage NYCDEP to comply with the schedule in the Modification.

To support this contention, ISC presented a table that described the interim requirements in the Abatement Order, the completion date for each abatement requirement, and the date when NYCDEP actually completed the interim requirements. According to the table prepared by ISC, NYCDEP completed only the draft report concerning the city-wide pilot program on time. In addition, ISC offered information to prove that NYCDEP knowingly underestimated the number of catch basins that needed hoods when the CSO Abatement Order was signed.

The Department and NYCDEP asserted that the Modification should not include stipulated civil penalties. To show the Department's diligence in enforcing the terms of the CSO Abatement Order, the Department explained that it initiated the enforcement action with respect to the alleged violations of the Abatement Order in July 1994, and then resolved the allegations with the Modification. According to the Department, New York City has now allocated the funds necessary to implement the catch basin survey and hood replacement programs outlined in the Modification thereby insuring their implementation.

Ruling: The Parties dispute whether the circumstances have changed since the Department and NYCDEP signed the CSO Abatement Order, and whether NYCDEP knowingly underestimated the number of catch basins that needed hoods. These disputes, however, do not raise a substantive and significant issue about including stipulated civil penalties in the proposed Modification.

The Third Interim Decision in this matter addressed the question of including stipulated penalties in the June 1992 CSO Abatement Order. Referring to the Civil Penalty Policy, the Commissioner held that the use of stipulated penalties is one tool to insure that the terms of a compliance schedule are met. The Commissioner stated that using stipulated penalties is discretionary and not required in any specific circumstance. The Commissioner concluded that stipulated penalties were not necessary because the terms of the CSO Abatement Order contained adequate enforcement mechanisms (NYCDEP, Third Interim Decision, June 1, 1993).

The reasoning provided in the Third Interim Decision concerning stipulated penalties in the CSO Abatement Order should be applied to the Modification. The proposed Modification does not limit the Department's ability to enforce the terms of the Modification and the CSO Abatement Order, or the 1988 SPDES permit conditions. Furthermore, the absence of any limitations, like stipulated civil penalties, preserves the Department's discretion to use any enforcement tool necessary to enforce the Modification, the Abatement Order and the permit conditions, and thereby encourages compliance.

Interim Floatables Abatement

The Modification would require NYCDEP to reduce floatable discharges from combined sewer outfalls by implementing programs to: (1) inventory and inspect catch basins in Phase I and Phase II areas of the City, and (2) replace catch basin hoods in the Phase I areas based on the results of the inspection. According to the Department Staff, the Modification resolves the allegations asserted in the July 6, 1994 Notice of Violation.

NYCDEP would begin to inspect, inventory, map and clean catch basins in the Phase I area by September 1995 and complete the program by December 1997. The required installation of any hoods in the Phase I area would begin by June 1996 and be completed by December 1997. There are 33,109 catch basins in the Phase I area, which is about a third of the City's catch basins. NYCDEP would begin to inspect, inventory, map and clean catch basins in the Phase II area by February 1997 and complete the program by February 1998. There are 33,354 catch basins in the Phase II area. The Modification does not require NYCDEP to replace any catch basin hoods in the Phase II area.

ISC contended, however, that NYCDEP could reduce floatables by an additional 9% if NYCDEP replaced all the catch basin hoods in the City, and inspected all catch basins on a three year cycle. ISC argued that it would be feasible to replace the hoods city-wide.

EDF contended that NYCDEP's interim abatement measures should be 90% effective. EDF later changed its position, and asserted that the interim abatement measures should be 80% effective. EDF asserted that NYCDEP should use the catch basin technology with the existing booming and skimming programs, and test alternative technologies to achieve an abatement level of 80% - 90%. In addition, EDF argued that NYCDEP could complete the catch basin survey and hood replacement programs within a year, rather than the two year schedule proposed in the Modification.

Basically, the Parties dispute what the interim goal for reducing floatables should be, how NYCDEP should reach this goal, and whether NYCDEP should implement the interim floatable abatement programs sooner than the schedule proposed in the Modification. These disputes focus attention on identifying the appropriate standards, and the guidance that can be used to achieve compliance with these standards.

The Parties agree that the applicable water quality standards are outlined in the federal Clean Water Act, ECL Article 17 and its implementing regulations, 6 NYCRR Parts 750-757, as well as the standards promulgated by the Interstate Sanitation Commission. Each legal authority prohibits the discharge of floatables.

The Parties also agree that immediate compliance with water quality standards is not realistic, and that there will be an interim period before compliance can be obtained. The Commissioner's Third Interim Decision dated June 1, 1993, and the EPA's Combined Sewer Overflow (CSO) Control Policy dated April 19, 1994 (59 Federal Register p.18688) provide guidance about how to achieve compliance with water quality standards.

The purpose of the EPA Policy is to expedite compliance with the Clean Water Act through a two-step process. The first step is to implement the nine minimum controls as interim measures to reduce the effects of floatables from CSOs. The second step includes developing and implementing long-term CSO abatement controls that will meet water quality standards (Control Policy, 59 Fed. Reg. p.18690). The EPA subsequently issued the Combined Sewer Overflows: Guidance for Nine Minimum Controls in May 1995 to provide guidance about how to implement the short-term objectives of the CSO Control Policy.

Consequently, these rulings address whether the proposed Modification will achieve compliance with water quality standards in a manner that is consistent with the guidance provided in the Commissioner's Third Interim Decision and the EPA policy documents. For the reasons discussed below, the Modification is consistent with this guidance and will enable NYCDEP to achieve compliance with water quality standards in the long-term. Therefore, the issues proposed by ISC and EDF are not substantive and significant issues for adjudication.

1. The Interim Goal for Floatables Abatement

ISC and EDF asserted that additional interim abatement measures are necessary to reduce floatables by more than 50%. ISC proposed that floatable discharges can be reduced by an additional 9% if NYCDEP implements a city-wide hood replacement program. EDF argued that floatable discharges should be reduced by 80% - 90% on an interim basis, and that this level of reduction would be feasible.

When the terms of the June 1992 CSO Abatement Order were negotiated, NYCDEP agreed to implement a two step process to abate the impacts from CSOs. The first step included measures to reduce floatables by 50% on an interim basis. Second, NYCDEP agreed to develop and implement a long-term CSO abatement plan that would achieve compliance with water quality standards.

It is no coincidence that the two-step process outlined in the June 1992 CSO Abatement Order mirrors the guidance in the CSO Control Policy. The CSO Abatement Order was based on the EPA's National CSO Strategy from which the current CSO Control Policy developed.

In addressing concerns raised by EDF and ISC about the CSO Abatement Order, the Third Interim Decision contemplated the possibility of an unspecified increase in the short-term abatement of floatables depending on the outcome of the hearing on ISC's enhanced street sweeping proposal. The criteria outlined in the Third Interim Decision for selecting additional short-term abatement measures are effectiveness, cost, and other benefits associated with greater degrees of removal (NYCDEP, Third Interim Decision, June 1, 1993).

The permit hearing to consider the enhanced street sweeping proposal convened on June 7-10, 1994. To give NYCDEP and the Department an opportunity to settle the July 1994 Notice of Violation, the hearing did not reconvene. However, a significant amount of information about the ineffectiveness and the high costs associated with enhanced street sweeping was entered into the record. In addition, information about the effectiveness, cost, and other benefits associated with catch basin maintenance and hood replacement was presented at the hearing. This information became the basis for the additional interim abatement programs proposed in the Modification.

Ruling: The catch basin survey and hood replacement programs in the Modification satisfy the criteria outlined in the Third Interim Decision concerning the selection of additional interim abatement measures. As a result, these interim abatement programs will substantially reduce the effects of floatables from CSOs in a manner that is consistent with the CSO Control Policy.

The Third Interim Decision identifies the criteria for selecting additional abatement measures. Although the exact costs associated with hood replacement are disputed, the city-wide hood replacement costs would be twice the cost of Phase I hood replacement. The city-wide hood replacement costs are too great for only an additional 9% reduction in floatables discharged from CSOs. Therefore, the dispute raised by ISC concerning the costs of a city-wide hood replacement program is not a significant issue for adjudication.

EDF's proposal to require NYCDEP to reduce floatable discharges by 80% - 90% on an interim basis is wholly unrealistic, and was not intended by the Third Interim Decision or the CSO Control Policy. Furthermore, EDF's offer of proof concerning the feasibility of this level of abatement was inadequate.

2. Interim Abatement Measures

EDF contended that NYCDEP should be required to test the "Soil-save" and "Trash-trap" technologies as alternative interim abatement control measures, and implement these measures, if they are shown to be effective at reducing floatables from CSOs.

Ruling: Controlling solid and floatable materials in CSOs is one of the nine minimum controls identified in the CSO Control Policy (59 Fed. Reg. p. 18691). The Guidance for Nine Minimum Controls encourages permittees to be creative and to explore innovative and cost-effective programs by selecting from several available measures (NMC p.1-6). Furthermore, permittees should select and implement control measures that do not require significant engineering studies or major construction, and which are based on the characteristics of the sewer system (NMC p.1-7). Similarly, the criteria in the Third Interim Decision provide flexibility in selecting interim abatement programs.

Whether NYCDEP should test and implement the alternative technologies proposed by EDF is not a substantive issue for adjudication. The interim abatement programs in the CSO Abatement Order and the Modification include maintaining catch basins (NMC p.7-3), booming (NMC p.7-8), and skimming (NMC p.7-10). The EPA guidance recognizes the effectiveness of these technologies, and does not require permittees to test or implement additional technologies after acceptable controls have been selected. Since NYCDEP can meet the objectives of the CSO Control Policy by maintaining catch basins, booming, and skimming no further inquiry about alternative control measures is necessary.

3. Implementation

EDF contended that NYCDEP could complete the catch basin survey and hood replacement programs in the Phase I area sooner than the schedule proposed in the Modification.

Ruling: The schedule proposed in the Modification is consistent with the guidance provided in the EPA's CSO Control Policy which recommends implementation as soon as practicable but no later than January 1, 1997 (59 Fed. Reg. p. 18691). According to the terms of the proposed Modification, the catch basin survey and hood replacement programs in the Phase I area were to have begun by September 1995 and would be completed by December 1997.

Moreover, the catch basin survey and hood replacement programs are additional abatement measures based on the criteria provided in the Third Interim Decision. NYCDEP has already begun the booming and skimming programs outlined in the CSO Abatement Order. Therefore, adjudicating how quickly NYCDEP should begin to implement the additional interim abatement programs is not significant. Furthermore, adjudication would only postpone and further delay the commencement and completion of the catch basin survey and hood replacement programs past December 1997.

Monitoring

EDF argued that the Modification and the SPDES permits are legally deficient because they do not require NYCDEP to monitor the discharge of floatables from the combined sewer outfalls. EDF recommended that NYCDEP contract with a firm, approved by the Department, to estimate and monitor the average monthly discharge of floatable debris.

Ruling: Monitoring is one of the nine minimum controls. The CSO Control Policy explains that the purpose of monitoring is to help the permittee develop the programs needed to implement the nine minimum controls and, if necessary, to support development of the long-term CSO control plan. Monitoring data can be used to evaluate how effectively the nine minimum controls and the long-term CSO controls will meet water quality standards (59 Fed. Reg. p. 18691).

NYCDEP has already completed the type of monitoring recommended in the CSO Control Policy by identifying which outfalls need booms, which parts of the harbor to skim, and which catch basins to include in the hood replacement program. The type of monitoring proposed by EDF, however, is not what is intended on an interim basis by the CSO Control Policy. Therefore, the monitoring proposed by EDF is not a significant issue for adjudication.

Other Issues

I have reviewed and considered all other matters discussed at the Issues Conference that were not explicitly discussed above, and conclude they are not substantive and significant issues for adjudication.

Rulings on Requests for Party Status

As provided in Part 624, the Parties to any adjudicatory hearing are the Applicant, the Department Staff and those who are granted party status. During the public comment period for the proposed Modification, I did not receive any petitions for party status. Consequently, there are no new Parties to this proceeding.

Appeals

Pursuant to 6 NYCRR 624.8(d) [formerly 624.6(d)], the Parties may appeal the ALJ's rulings on issues for adjudication. The Commissioner must receive any appeals by November 13, 1995. Appeals shall be double-spaced and not longer than 20 pages. Replies are authorized, and the Commissioner must receive them by November 28, 1995. Replies shall be double-spaced and not longer than 15 pages.

Send one copy of any appeal and reply to the Commissioner, NYS Department of Environmental Conservation, Room 608, 50 Wolf Road, Albany, New York 12233-1010. Also, send one copy of any appeal and reply to everyone named on the attached Service List. Send three copies of any appeal and reply to the Administrative Law Judge. Appeals and replies must be distributed to everyone at the same time and in the same manner.

Further Proceedings

I will initiate a conference call with the Parties on November 13, 1995 at 10:00 A.M. to schedule the hearing on the presently unresolved issues related to whole effluent toxicity, flow measurement, and plant capacity problems. If, after reviewing any appeals, the Commissioner determines there are substantive and significant issues about the Modification, adjudication of those issues will be included as well.

_____________/s/_____________

Dated:

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