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New York, City of (SPDES) - Supplemental Rulings, January 27, 1993

Supplemental Rulings, January 27, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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.

SUPPLEMENTAL RULINGS

of

ADMINISTRATIVE LAW JUDGE

DEC Case No. 0026131

Summary of Proceedings

This proceeding concerns modifications to the State Pollutant Discharge Elimination System ("SPDES") permits for New York City's 14 publicly owned sewage treatment plants (the "plants"). The Region 2 Staff of the New York State Department of Environmental Conservation issued the City's 14 renewal SPDES permits on September 27, 1988. In a decision dated April 17, 1989, the Supreme Court of the State of New York, County of Queens (Interstate Sanitation Commission v. Jorling, et al, Index No. 16492/88, Justice Dunkin), granted the plaintiffs' petitions compelling the Department to hold an adjudicatory hearing after permit issuance, pursuant to 6 NYCRR 757.2, for possible modification of the permits.

New York State's SPDES program is governed by the 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. New York State has been delegated authority to administer its SPDES program by the Unites States Environmental Protection Agency ("EPA") pursuant to the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq, the "Clean Water Act" or "CWA"). The State's SPDES program must be consistent with the applicable provisions of the CWA and the national "NPDES" program, and with the implementing federal regulations applicable to municipal sewage treatment plants.

In these rulings, no attempt will be made to describe all prior proceedings held in this matter. For the complete context of these rulings, the reader is referred to the following rulings and decisions: ALJ's Rulings on Issues for Adjudication, April 20, 1990; Commissioner's Interim Decision, January 31, 1991; and the Commissioner's Second Interim Decision (with attached ALJ's Interim Hearing Report), July 16, 1991.

The parties to this proceeding are the City, the Department Staff, and the following intervenors: the Interstate Sanitation Commission ("ISC"); the Environmental Defense Fund ("EDF"); the Natural Resources Defense Council ("NRDC"); the Sierra Club; the Hudson River Fishermens Association ("HRFA"); the New York Coastal Fishermens Association; and the Connecticut Coastal Fishermens Association. The EPA, while not a party to the proceeding, has participated actively in its role as the overseer of the State's administration of its delegated SPDES program. A distribution list is attached at the end of these rulings.

This proceeding has followed a course in which each major area of issues concerning discrete provisions in the permits is addressed in turn. If and when a resolution is reached on any issue, the agreed upon conditions can then be incorporated into the permits without awaiting resolution of other issues remaining in dispute. This occurred with respect to the issues of toxic effluent standards and pretreatment requirements, which were the subjects of the latter ALJ rulings and the Commissioner's Second Interim Decision cited above. Major issues which remain unresolved include whole effluent toxicity, nutrient removal and plant capacity problems. These rulings address another main area of issues affecting modified permit conditions, untreated discharges or combined sewer overflows ("CSOs").

CSO Consent Order

Most of New York City's sewer system consists of "combined" sewers; i.e., sewers that carry both sanitary sewage and stormwater drainage flows during and after precipitation events. CSO discharges occur during periods of wet weather when the total flow of sewage and stormwater in the sewer system exceeds the plants' treatment capacities. This results in the bypassing of a substantial portion of the sewer system flow around the plants and the discharge of the untreated combined sewage/stormwater flow directly into the receiving waters through some 450 outfalls throughout the five boroughs.

CSO discharges release pollutants in dissolved liquid form, suspended or settleable solids, and floatable solids. These CSO discharges often cause contraventions of the permits' water quality based effluent limits. CSO discharges include street litter and other floating material, called "floatables," which wind up in the receiving waters. CSO-caused water quality contraventions and discharges of floatables have been the direct cause of beach closings in the New York City metropolitan area.

The existing 1988 permits recognized this problem and included a schedule for formulation of CSO abatement programs based on the City's several major drainage basins. All parties recognized, however, that the existing permit requirements were inadequate under federal and state law. Hence the problem of untreated discharges and CSOs were stipulated as an issue for adjudication (see ALJ's memorandum of September 18, 1989).

In the interim, the parties and the EPA engaged in extended negotiations to attempt to resolve the CSO issue. These negotiations have now borne fruit in the form of an enforcement Order on Consent addressing CSO abatement executed by the Department and the City on June 25, 1992 (the "CSO Consent Order"), which is attached to these rulings as an appendix. The CSO Consent Order establishes a comprehensive program which the City must follow in order to eventually eliminate CSO discharges as a cause of water quality violations.

The Consent Order recognizes and explicitly states ( 6) that CSO outfalls are point sources under the CWA and are subject to New York State water quality based and technology based standards. The violations directly triggering the enforcement process resulting in the Consent Order were the City's failure to meet deadlines for initiation and completion of the several drainage area Facility Plans as required by the 1988 permits (see Consent Order 7-9). In satisfaction of the City's civil penalty liability, the Consent Order requires the City to establish and fund a $250,000 environmental benefit program to benefit the waters of the City, subject to Department approval ( 11, I).

The Consent Order also requires the City to undertake a long term program to abate CSO discharges. "Track One" (Consent Order 12, V - VII) requires the City to carry out a program to plan, design and construct CSO abatement facilities designed to prevent permit violations of effluent limits for dissolved oxygen and coliform bacteria. The Order establishes a compliance schedule with milestone dates extending to 2006 for completion of construction of facilities in each of the City's nine main drainage basins. The Track One facilities will consist primarily of holding or equalization tanks that will retain the combined sewer flow until it can be treated before discharge into the receiving waters. The Order ( XVI) provides for stipulated penalties for the City's failure to meet milestone deadlines or submit required reports.

The "Track Two" program (Consent Order 13, VIII- XIII) is designed to address the long-term abatement of floatables discharges from outfalls not controlled by Track One facilities. The Order establishes a schedule for the City to first initiate a pilot program to investigate non-structural alternatives for floatables control such as street cleaning, booming and skimming, catch basin improvements, and public education. The City will also test swirl concentrator devices in the Flushing Bay area by 1996. The Order then requires the City to prepare a comprehensive plan for long term floatables abatement based on the results of the pilot study and tests.

In the interim before the completion of Track One or Track Two facilities, the City is required to implement short-term floatables control measures consisting of cleaning catch basins, and booming and skimming (Consent Order 15, XIV). The Order prescribes a booming and skimming program that requires the City to purchase and use a skimmer boat for open water skimming in the New York Harbor by July 31, 1993. The City is further required to implement booming and skimming operations in certain tributaries and at designated large outfalls in beach-sensitive areas according to a phased schedule extending to 1994. The Order also provides that the Department and the City "shall continue their negotiations concerning additional measures, such as expanded street sweeping, to complement the other short-term measures [for floatables control]."

Issues - Positions of the Parties

Although the Consent Order is now fully executed, binding and in effect, two intervening parties, the ISC and EDF, object to one or more aspects of the Consent Order and the way in which it is proposed to be incorporated into the permits. All parties recognize that the substantive obligations now required by the Consent Order represent significant progress toward resolution of the City's CSO problems, even if, as they contend, in one or more respects, it does not go far enough. Those intervenors thus contend that all CSO-related issues are not fully resolved by the Consent Order and there is a need for adjudicating or deciding the remaining issues they raise (described below). The City and Department Staff take the position that the CSO Consent Order resolves all CSO-related issues, leaving none for further resolution through adjudication.

At this juncture of the proceeding, the burden to raise an issue for adjudication remains on the intervenors seeking to raise an issue, in the same manner as after an ordinary issues conference. Where the Applicant and Department Staff agree on permit issuance and on the absence of any adjudicable issues, the intervenors seeking to raise such an issue must present a cogent offer of proof demonstrating the substantiveness and significance of the issue. A conference on the CSO Consent Order at which these potential issues were raised was held on June 26, 1992. This was the latest in a series of procedural, settlement, and issues conferences held in this matter over the past three years. After the issues conference, the parties submitted written briefs and reply briefs, with attached affidavits or exhibits, in support of their positions on the CSO issues. The latest of these submissions was received on November 20, 1992.

Another old issue was also reactivated during this period concerning the incorporation of the ISC's regulation into the permits. The Commissioner, in his first Interim Decision of January 31, 1991, upheld the ALJ's ruling that the ISC's regulations must be incorporated into the permits, but left the actual language to be determined by agreement among the parties or by submission to the ALJ. No agreement was reached, and the Department Staff did not submit its proposed language until December 8, 1992. The ISC objected and proposed insertion of its own language of incorporation, which it had first submitted in August 1991. The latest submission on this issue was received on January 8, 1993.

The intervenors ISC and EDF raised the following issues at this juncture of this proceeding concerning CSOs which they contend are sufficiently substantive and significant to require adjudication and/or determination by the ALJ:

  1. Whether the CSO Consent Order should be referred to and attached to the permits, or incorporated directly into the permits as permit obligations (argued primarily by EDF);
  2. Whether the City should be required to conduct an enhanced street sweeping program in conjunction with booming and skimming as an interim measure to control floatables discharges until the Track Two facilities are constructed (argued primarily by ISC);
  3. Whether the compliance schedule for long term CSO floatables abatement under the Track Two program is unduly long (argued by EDF); and
  4. Whether the permits and/or Consent Order should include additional stipulated penalties applicable to the City's failure to meet scheduled milestone dates (argued by EDF).

These rulings will address those four issues concerning CSOs, as well as the reactivated issue of the appropriate language to insert to incorporate the ISC's regulations into the permits.

- Incorporation of CSO Consent Order into Permits

The first issue to be resolved in these rulings concerns only the language to be used to incorporate the substantive requirements of the CSO Consent Order into the permits. This is a strictly legal issue that does not require any factual adjudication. It must, however, be resolved by these rulings in order that the permits can be properly modified.

The City and Department Staff have proposed insertion of language which simply states that the City's CSO program obligations are governed by the Consent Order, which will be attached to the permits. The Consent Order would also be amended to provide that any proposed change in the schedules for the program would constitute a modification of the Order subject to the procedural requirements of 6 NYCRR Part 621. The language proposed by the City and Department Staff for insertion into the permits (in the section entitled "Combined Sewer Overflow (CSO) - Water Quality Requirements" is as follows:

"DEC and the permittee have entered into a Consent Order effective June 26, 1992, which is attached hereto, concerning the permittee's combined sewer overflow (CSO) abatement program. This Consent Order governs permittee's obligations with regard to its CSO program."

The City and Department Staff then propose adding in paragraph XXV of the Consent Order the following sentence:

"Any proposed change to the schedules for interim measures, Track One, or Track Two shall constitute a proposed modification of this Order subject to the procedural requirements set forth in 6 NYCRR Part 621."

The City and Applicant contend that the City's CSO compliance schedule should remain in the Consent Order as a separate attached document, and that its provisions should not be placed directly into the permits themselves. Otherwise, they argue, the City may be subject to multiple and confusing enforcement proceedings. The City and Staff also state that this method is consistent with EPA rulings which hold that permits may not include compliance schedules that sanction pollutant discharges that do not meet applicable state water quality standards.

The intervenors ISC and EDF contend that the CSO program requirements should be incorporated more directly into the permits themselves in order to comply with the CWA. The ISC suggests simply adding a sentence stating that the CSO Consent Order obligations are also permit obligations. EDF's objection stems from its interpretation that the current permits lack any presently applicable effluent limits or other requirements specific to CSO discharges, as outfalls or point sources. In the absence of such regulation of CSOs, EDF contends the permits now authorize CSO discharges that do not meet water quality standards, in violation of the CWA, 33 USC 1311(b)(1)(A), which requires such standards to be in place and point sources to be in compliance no later than July 1, 1977. EDF therefore argues that the permits must contain standards applicable to the CSO outfalls as point sources, with which the City would immediately be in non-compliance. The permits could then address this non-compliance by means of an enforcement schedule of compliance, which is also included in the permits, as authorized by 6 NYCRR 754.3.

As a practical matter, the dispute over this issue revolves around the opportunity for public involvement in the permitting process. The City's actual CSO program obligations would not be altered by incorporating the Consent Order requirements directly into the permits. The intervenors are however concerned that their ability to intervene in permit renewal or modification proceedings, as granted by 6 NYCRR Part 621 and, specifically for SPDES permit proceedings, by 6 NYCRR 757.1 and Part 753, will be circumvented if the City's obligations are only found in an enforcement instrument such as a consent order. The City and Department Staff have attempted to address this concern by providing that any proposed modification of the Consent Order's compliance schedules will be subject to the procedural requirements of Part 621.

The City, on the other hand, is concerned about the potential for multiple exposure to enforcement actions if it is bound by duplicative requirements in both the Consent Order and the permits. If the CSO program requirements are incorporated as permit requirements, the City could be subject to citizens suits pursuant to the CWA 505 (33 USC 1365) in addition to enforcement of the Consent Order by the Department. The City and Department Staff also assert that their position is consistent with the EPA's direction to place schedules of compliance in administrative consent orders, but not in permits.

In a technical sense, EDF may be correct in its interpretation that the permits do not directly impose applicable technology and water quality based standards on the City's CSO discharges. As currently written, the permits sidestep this issue. The permits list all the outfalls in the combined sewer system, which presumably discharge CSOs, and require each plant to develop a facility plan in its drainage basin. The failure to meet the schedule for developing these facility plans triggered the Consent Order which now establishes a compliance schedule superseding the facility planning schedule in the permits. There is no direct statement in the permits themselves to the effect that all CSO outfalls are point sources subject to all applicable standards, let alone any actual effluent standards for the outfalls. Technically, all those point sources were to have been in compliance by the effective date of the CWA, July 1, 1977.

However, the Consent Order, which will be attached to the permits, does state that CSOs are point sources under the CWA and subject to technology and water quality based standards. There is no legal requirement that such a statement be included in the permits themselves. So long as the City's obligations are clearly stated in the permits by reference to the attached Consent Order, the permits satisfy the requirements and fulfill the intent of the CWA and State law. Those requirements are flexible with respect to the discretion of the delegated State's enforcement authority. In this case, New York has the authority to impose a schedule of compliance in a permit pursuant to 6 NYCRR 754.3, but also the discretion to include it in a Consent Order rather than as a direct permit requirement. There are no magic words nor any prescribed formula for incorporating an enforcement compliance schedule into a permit. The language and method used here, a reference and its physical attachment, is a perfectly acceptable way to clearly set forth the City's obligations.

As a practical matter, including more in the permits would be duplicative of the Consent Order and amount to no more than a meaningless mea culpa. Even the EDF concedes that for the purposes of this proceeding at this juncture, there is no basis to impose any water quality-based effluent limits or technology-based standards on the CSO discharges. As the Department Staff points out, the schedule of compliance in the Consent Order is so attenuated compared to the 5-year renewal cycle of the permits, that putting it in the permits would only create undue confusion at each renewal. The EPA Region 2 Office has indicated its concurrence with this method of incorporating the CSO Consent Order by reference only in the permits, with the Consent Order attached.

The concerns of the intervenors about the opportunity for public participation may be at least partly addressed by the proposed provision in the Consent Order to require compliance with 6 NYCRR Part 621 procedure for modifications to the Consent Order. However, the language proposed by the City for insertion into the Consent Order is vague. It is not clear whether the procedures for a full new application would apply, or the procedures for processing a permit modification request. Where an applicant applies for a modification under 621.13, there is no requirement for public notice. Therefore, these rulings recommend that the provision be changed to require any proposed modification of the schedule of compliance to comply with the procedural requirements of 6 NYCRR Part 753, governing SPDES permit applications. Under that section, public notice by means of publication and direct notice to interested parties is required, along with a hearing if substantive issues are raised.

In conclusion, the Consent Order need not be incorporated into the permits other than by the reference as proposed by the City and Department Staff. However the reference to the procedure for modification of the Consent Order should be to 6 NYCRR Part 753 rather than Part 621. The Department Staff is therefore directed to insert the proposed language set forth above into the permits and Consent Order, except to change the reference in the Consent Order from 6 NYCRR Part "621" to "753."

Street Sweeping to Control Floatables

As indicated above in these rulings, one of the chief impacts of CSOs on the nation's waters is the discharge of floatable debris. The current permits for the City's plants prohibit the discharge of "floating solids" in accord with the State's water quality standards (see 6 NYCRR 701.20[1]). The control of floatables is a major priority of the National CSO Strategy formulated by the EPA. In the New York metropolitan area in particular, the EPA has stressed the importance of taking immediate short-term measures to reduce floatables in order to reduce the likelihood of beach closures. Since the Track Two floatables comprehensive plans are not scheduled to be completed until 1997, and facility construction is not expected to start until around 2002 at the earliest, the "interim" control of floatables from the City's CSOs will last for at least a decade.

The Consent Order's chief requirement for the interim control of floatables during the development of the long-term Track Two facilities is the "booming and skimming" program. Under this program, the City will deploy floating booms and skimming vessels in selected strategic tributaries and at certain beach-sensitive outfalls after rain events. The booming and skimming program will be phased in over two years. By May 1994 it will cover approximately 54% of the City's drainage area and is projected to capture about 45% of the City-generated floatables, preventing them from entering the City's waters.

The ISC does not generally dispute the projected efficacy of the booming and skimming program (although it does differ on the calculation of the capture percentage figures), but contends that booming and skimming alone is insufficient to effectively control floatables during the interim period. The ISC has presented a specific proposal to require the City to conduct extra street-sweeping in the dirtiest of those areas of the City not covered by booming and skimming, during the May to September bathing season. The ISC contends that this enhanced street-sweeping program, used in conjunction with booming and skimming, will increase the percentage of captured floatables from 40.3% to 63% during the bathing season.

The ISC has presented this proposal in the form of a substantive offer of proof supported by affidavits and exhibits prepared by its chief proposed witness, Boris Rukhovets, Principal Engineer for the ISC. The City has responded in opposition with affidavits by its Deputy Director of Design, Bureau of Environmental Engineering of the City DEP, Robert Gaffoglio, P.E.

The City and Department Staff do not directly dispute the ISC's projections of an increase in floatables control with enhanced street-sweeping in addition to booming and skimming, but raise several tangential arguments. It is not relevant, as the City and Department Staff charge, that the ISC originally proposed only street-sweeping, but has now changed its proposal to an adjunct to the booming and skimming program already required by the Consent Order. That is a perfectly appropriate response to the changed conditions now mandated by the Consent Order.

The ISC's current proposal to combine street-sweeping with booming and skimming also renders irrelevant arguments pitting the advantages of one method against those of the other. It is true, as the City and Staff assert, that street sweeping will not capture floatables derived from toilets, as booming and skimming will. However, there is no dispute that street litter is the major source of floatables in CSOs and that increased street sweeping is an recognized effective method of controlling their discharge.

Department Staff and the City also assert that there is no proven correlation between the locations of dirty streets and their CSO outfalls locations and beach closings. That point cuts both ways. Any floatables control anywhere in the City must be assumed to be equally effective in reducing the likelihood of beach closings.

The main substantive argument raised in opposition to the ISC proposal is its cost or cost-effectiveness. Cost of the ISC proposal is certainly a factor and properly within the scope of the issue proposed for adjudication. The National CSO Strategy explicitly states that "the permittee should choose the most cost effective control measures which will insure compliance with water quality standards." (National Combined Sewer Overflow Control Strategy, USEPA, August 10, 1989, page 6). An affidavit submitted by the City Department of Sanitation official responsible for street-sweeping operations raises doubts about the cost-effectiveness of the ISC proposal but by no means resolves them. The only way to do that is through testing the parties' positions in an adjudicatory hearing.

The ISC has met the standard for raising a substantive and significant issue for adjudication. The ISC has presented a substantive offer of proof in support of its proposal to require the City to conduct an enhanced street-sweeping program. If the ISC is correct, its program would increase the capture of floatables from entering the New York Harbor on the order of more than 50% during the summer months. A reduction in floatables of this magnitude is significant in statistical terms as well as in terms of raising a significant issue under the Part 624 standard. If the ISC is correct, its program would help bring the City into significantly greater compliance with the applicable water quality standards during the interim period. The overall effectiveness and cost-effectiveness of the ISC program was challenged by the City and Department Staff with substantive responses. The issue thus framed can only be resolved through adjudication.

Long Term Floatables Abatement Compliance Schedule

The CSO Consent Order provides a compliance schedule entitled Track Two for the long-term development of facilities to control floatables discharges from the 400 outfalls not covered by the Track One facilities. The key dates are the commencement of a pilot program in 1992; completion of the pilot program in 1995; testing swirl concentrators by 1996; completion of comprehensive plan by 1997; and beginning facility construction on a staggered schedule tied to completion of Track One facilities in each area (around 2002 to 2008). The EDF challenges this compliance schedule as unduly extended, alleging it is inconsistent with the requirement of 6 NYCRR 754.3(a) that compliance be required "within the shortest reasonable time."

As the City and Department Staff have pointed out, however, the EDF fails to support its position with a substantive offer of proof. The City has submitted affidavits from Mr. Gaffoglio supporting the necessity of the extended compliance schedule in order to test and evaluate various technologies for which there is no current consensus or EPA guidance. Also, the City contends the cost of accelerating the Track Two construction schedule to coincide with Track One facilities' construction would be excessive. EDF contends that the statements in the City's affidavits are conclusory and that it would call Mr. Gaffoglio and a representative of the City's consulting firm, Hydroqual, as hostile witnesses for cross-examination on this issue.

While EDF is correct to some degree in characterizing the City's position as conclusory and in not providing a complete justification for the Track Two compliance schedule, that is beside the point. Where the City and Department Staff are in reasonable agreement on a potential issue, the burden to raise an issue for adjudication under 6 NYCRR Part 624 falls on the intervenor, who must present a substantive offer of proof in support of its position. The Track Two compliance schedule was adequately supported by the City and Staff with a reasonable basis. At this issues conference stage, no further "evidence" is required in order to shift the burden to the intervenor. Without an affirmative and substantive offer of proof by EDF in these circumstances, we are left only with EDF's desire to shorten the compliance schedule. This does not present a substantive basis for adjudication.

Stipulated Penalties

EDF contends that the permits should include stipulated penalties for the failure of the City to comply with the milestone dates and deadlines in the CSO abatement compliance schedule. Leaving aside the issue of whether the compliance schedule is properly considered a permit or strictly a consent order obligation (addressed above in these rulings), EDF is apparently arguing that the stipulated penalties already provided for in the Consent Order are insufficient. EDF cites the Department's Civil Penalty Policy, Enforcement Directive II, June 20, 1990. This does not raise any issue that could be subject to adjudication, but is strictly a legal issue that can be determined by these rulings.

While the Civil Penalty Policy outlines the reasons for including stipulated penalties in enforcement consent orders with compliance schedules, it by no means mandates their inclusion in all circumstances. That discretion remains in the Department Staff as the enforcement authority. In any event, the CSO Consent Order does include substantial stipulated penalties for each day of noncompliance with the Track One schedules. As the Civil Penalty Policy points out, the lack of stipulated penalties for noncompliance with other milestone dates, such as the Track Two schedules, still subjects the City to liability for enforcement for violation of the Consent Order and underlying statutes and regulations, if it misses those deadlines. All this is well within the discretion of the Department Staff. EDF's contention is therefore dismissed.

Incorporation of ISC's Regulations

The ALJ's April 20, 1990 initial ruling on the issues in this case held that the ISC's regulations must be incorporated into the permits with a specific citation to the applicable regulations. The ruling directed the Department Staff and the ISC to attempt to agree upon proposed language or, if they could not agree, to submit their proposals to the ALJ for a determination. This ruling was upheld by the Commissioner in his Interim Decision dated January 31, 1991.

The ISC in August 1991 proffered proposed language citing a reference to its regulations, 21 NYCRR Part 550, and a statement to the effect that any waiver of its regulations required approval by the ISC. The Department Staff in December 1992 has countered with a proposal which includes a reference to the ISC's regulations in a list among other applicable laws and regulations. The Department Staff objects to including any further explicit statement regarding ISC's waiver authority as an infringement on the Department's enforcement authority.

The ISC's regulations are on a different footing than the other applicable laws and regulations listed in the Department Staff's proposed footnote 9 to page 3 of 33 in the permits. The ISC's regulations contain specific effluent limitations and water quality standards binding on the City in the day-to-day operation and monitoring of its plants' discharges. The other laws and regulations included in footnote 9 consist of a catch-all list of laws of general applicability, such as ECL Article 17, the CWA, and the SPDES regulations, 6 NYCRR Parts 700-705 and 750-757. Including the reference to the ISC regulations in the middle of this list is potentially confusing and contrary to the ruling's requirement that the permits clearly indicate what is required of the permittee.

This can be remedied by simply placing the reference to the ISC's regulations in a separate footnote 9, followed by footnote 10 listing the other generally applicable statutes and regulations. Therefore, the Department Staff is directed to insert the following language as footnote 9 on page 3 of the 14 SPDES permits for the City's plants:

"(9) The permittee shall comply with the requirements of the Interstate Sanitation Commission (ISC) Water Quality Regulations promulgated pursuant to the authority conferred upon the ISC by the Tri-State Compact (ECL Article 21, Title 5), and set forth in 21 NYCRR Part 550."

This language also conforms to that in the examples from New Jersey and Connecticut permits as suggested in the earlier rulings on this issue.

It is not necessary under the earlier rulings of the ALJ and Commissioner to add any more explicit reference to the ISC's waiver authority. As indicated by the Commissioner's Interim Decision (page 2), the Department Staff and ISC have parallel authority to enforce the permit requirements. The ISC's waiver authority is included in 21 NYCRR Part 550, which is already incorporated by reference. Since these SPDES permits are administered only by the Department, it is not necessary, and may even be inappropriate to refer explicitly to another agency's authority. The ISC's enforcement and waiver authority is adequately incorporated by the citation to 21 Part 550 as set forth above for insertion as footnote 9 in the permits.

Summary of Rulings

  1. The language proposed by the City and Department Staff for referring to the City's CSO program obligations as contained in the attached CSO Consent Order is appropriate. The reference in the Consent Order to the procedure to follow for requested modifications to the compliance schedules should however be changed to 6 NYCRR Part 753 rather than Part 621.
  2. The ISC has presented an adjudicable issue on the cost and effectiveness of its proposed enhanced street-sweeping program to be used as a supplementary measure to control floatables during the interim period until completion of Track Two facilities.
  3. The EDF failed to present an adjudicable issue on the length of the compliance schedule for the development of the "Track Two" facilities for the long term abatement of floatables.
  4. There is no legal basis to require any additional stipulated penalties in the CSO Consent Order or permits.
  5. The ISC's regulations must be incorporated by reference by inserting the language indicated above.

Subsequent Procedure and Appeals

No schedule for hearing the issue for adjudication will be set until either the time for appeals lapses or any appeals are decided by the Commissioner. At that time, a schedule will be set to convene the hearing on the certified issue (if it remains after appeal) at the earliest mutual convenience of the necessary parties.

These supplemental rulings on the issues for adjudication concerning CSOs and the CSO Consent Order may be appealed to the Commissioner pursuant to 6 NYCRR 624. The time for filing any such appeals is extended to February 11, 1993. Responses to any appeals may then be filed no later than February 19, 1993. Those dates are dates by which the filed papers must be received by the Commissioner, the AlJ, and the active parties on these issues (the City, Department Staff, ISC, and EDF). Transmission by fax to those parties on the due date will be sufficient, with a follow-up by regular mail. The other parties may be served by regular mail only.

The Commissioner's address is: NYSDEC, 50 Wolf Road, Albany, New York 12233-1010; Fax: (518) 457-1088.

_____________/s/_____________
Andrew S. Pearlstein
Administrative Law Judge

Dated: January 27, 1993
Albany, New York

To: Attached Distribution List

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