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New York, City of (SPDES) - 3rd Interim Decision, June 1, 1993

3rd Interim Decision, June 1, 1993

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

In the Matter

- of -

the Application of
The NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION
for Renewals of the State Pollutant Discharge Elimination System ("SPDES") Permits
for New York City's 14 Publicly Owned Sewage Treatment Plants.

THIRD INTERIM DECISION

June 1, 1993

Third Interim Decision of the Commissioner

This Interim Decision relates to appeals filed to the January 27, 1993 Supplemental Rulings (the "Rulings") of Administrative Law Judge ("ALJ") Andrew S. Pearlstein in the captioned proceeding. The proceeding concerns proposed modifications to the State Pollutant Discharge Elimination System ("SPDES") permits for New York City's (the "City") 14 publicly owned sewage treatment plants. The Rulings address issues related to combined sewer overflows ("CSOs").

The City and the Department Staff have appealed the inclusion of the issue of street sweeping to control floatables. The Environmental Defense Fund ("EDF") appeals the portions of the Ruling which address the incorporation of the CSO consent order into the permits and stipulated penalties.

Street Sweeping to Control Floatables

Pursuant to the terms of the June 26, 1992 consent order (the "Order"), the City is committed to an interim program to control floatables. The program consists of deploying floatable booms and using skimming vessels in selected areas after rain events. When fully implemented this program is estimated to be able to remove between 40-45% of floatables.

The Interstate Sanitation Commission ("ISC") has proposed the implementation of an enhanced street sweeping program to further increase the percentage of captured floatables. There is no substantial factual dispute concerning the ability of such a program to significantly increase the capture percentage. The principal dispute concerns the cost of such a program.

In its Track 2 program, the City is addressing compliance with the state water quality standard that relates to floatables (6 NYCRR 703.2). Almost by definition, interim measures are not designed to achieve full compliance but will result in some lesser degree of removal. In this case, the interim measures are independent of the final controls; they will neither enhance the effectiveness of the final controls nor speed up their implementation. Under these circumstances, the selection of the appropriate interim measures should consider effectiveness of removal, cost and the environmental and other benefits associated greater degrees of removal. The question presented on appeal is whether there is a substantial factual dispute concerning these factors which has a significant potential to result in requiring the imposition of any additional interim control.

As has been stated in prior decisions, where the question is one of whether a factual dispute requires adjudication, substantial deference is given to the ALJ's judgment (In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992). Here, the ALJ concluded that the offers of proof were sufficient to establish a substantive dispute concerning cost and I find no basis to disturb that conclusion. There is also adequate support to show that the dispute over cost is potentially significant enough to warrant the imposition of additional measures. The issue will not be limited to the cost component and the parties may present evidence relevant to any of the factors enumerated above.

Incorporation of the Consent Order

Presently, it is proposed that there be two legal instruments that govern the City's obligations with respect to CSOs - the consent order between the City and the Department executed on June 26, 1992 and the permit that is the subject of this proceeding. The permit will contain a provision stating that the consent order governs the City's obligations for its CSO program and that any changes in the schedules for compliance will be treated as permit modifications. The ALJ further required that any permit modifications be accompanied by a mandatory requirement for public notice and a public hearing, if substantive issues exist.

EDF argues that the terms of the compliance schedule are, as a matter of law, required to be part of the City's permit rather than the consent order. The principal concern expressed by EDF is that the compliance schedule not be modified without the opportunity for citizen input and that rights for citizen enforcement under section 505 of the Federal Water Pollution Control Act (the "Act") be preserved.

Under federal law, deadlines for statutory compliance may not be extended by permit condition (Bethlehem Steel Corporation v. Train, 544 F2d 657 (CA 3d Circuit, 1976); see also National Combined Sewer Overflow Control Strategy, 54 FR 37370 at 37372). While there are provisions in state law and rules that reference the placement of compliance schedules in permits, those provisions should be read consistent with their federal counterparts, i.e. that compliance schedules are appropriate in permits, but not to extend a statutory compliance deadline. In such situations, an enforcement order is the appropriate vehicle.

Moreover, I also find that, as a practical matter, the rights wish EDF seeks to preserve are protected by the language in the permit as modified by the Ruling. Any modification will require both public notice and the opportunity for hearing. Further, if the City fails to comply with the compliance schedule, it will be exposed to a citizen suit under section 505 of the Act regardless of the relationship of the compliance schedule to the permit.

Stipulated Penalties

EDF has appealed the ALJ's refusal to expand the use of stipulated penalties to provide proper incentives to meet the compliance schedules. Presently, stipulated penalties are provided for only in limited circumstances.

As set forth in the Department's Civil Penalty Policy, the use of stipulated penalties is one tool to help ensure fulfillment of the terms of a compliance schedule. It is not required in any specific circumstance, but rather its use is discretionary. In this case, I concur with the ALJ that the permit and consent order as drafted already contain adequate enforcement mechanisms.

Summary

The Rulings are upheld and the matter is remanded to ALJ Pearlstein to conduct an adjudicatory hearing on the one issue set forth above.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Third Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 1st day of June, 1993

_____________/s/_____________
THOMAS C. JORLING, COMMISSIONER

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