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Subpart 750-02: Operating In Accordance With A SPDES Permit

(Statutory authority: Environmental Conservation Law (ECL) Article 3, Title 3; Article 15; Article 17, Titles 3, 5, 7, 8; Article 21; Article 70, Title 1; Article 71, Title 19. New York State Penal Code, Articles 175 and 210. Public Health Law, Section 502. Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.))

[Effective Date: 05/11/03.]

Contents:

Sec.

§750-2.1 General Provisions of a SPDES Permit

(a) The SPDES permit, or a true copy, shall be kept readily available for reference at the largest wastewater treatment facility on site.

(b) Upon issuance of a SPDES permit, a determination has been made on the basis of a submitted application, plans, or other available information, that compliance with the specified permit provisions will reasonably protect classified water use and assure compliance with applicable water quality standards. Satisfaction of permit provisions notwithstanding, if operation pursuant to the permit causes or contributes to a condition in contravention of State water quality standards or guidance values, or if the department determines that a modification of the permit is necessary to prevent impairment of the best use of the waters or to assure maintenance of water quality standards or compliance with other provisions of ECL Article 17, or the Act or any regulations adopted pursuant thereto (see section 750-1.24 of this Part), the department may require such a modification and the Commissioner may require abatement action to be taken by the permittee and may also prohibit such operation until the permit has been modified pursuant to section 621.14 of this title.

(c) The provisions of a SPDES permit are severable, and if any provision of the permit, or the application of any provision of the permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of the permit, shall not be affected thereby.

(d) If the discharge(s) permitted in a SPDES permit originate(s) within the jurisdiction of an interstate water pollution control agency, then the permitted discharge(s) must also comply with any applicable effluent standards or water quality standards promulgated by that interstate agency and as set forth in the permit for such discharge(s).

(e) The permittee must comply with all terms and conditions of the permit. Any permit noncompliance constitutes a violation of the Environmental Conservation Law and the Clean Water Act and is grounds for: enforcement action; for permit suspension, revocation or modification; and for denial of a permit renewal application.

(f) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Department, the permittee shall promptly submit such facts or corrected information to the regional water engineer.

(g) It shall not be a defense, for a permittee in an enforcement action, that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

(h) The filing of a request by the permittee for a permit modification, termination, transfer, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition.

(i) The permittee shall furnish to the department, within a reasonable time as set forth in the department request, any information that the department may request to determine whether cause exists for modifying, suspending, or revoking a SPDES permit, or to determine compliance with the permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee.

(j) Nothing in a SPDES permit relieves the permittee from a requirement to obtain any other permits required by law.

(k) Discharges authorized by a SPDES permit as defined in subdivision 1.2(a) of this Part are deemed in compliance with Titles 5, 7 and 8 of Article 17 and the regulations promulgated thereunder.

§750-2.2 Exclusions

(a) The issuance of a SPDES permit by the department and the receipt thereof by the Applicant does not supersede, revoke or rescind an order on consent or modification thereof or any of the terms, conditions or requirements contained in such order or modification thereof unless specifically intended by said order or a newly issued order.

(b) The issuance of a SPDES permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations; nor does it obviate the necessity of obtaining the assent of any other jurisdiction as required by law for the discharge authorized.

(c) A SPDES permit does not authorize or approve the construction of any onshore or offshore physical structures or facilities or the undertaking of any work in any navigable waters.

(d) Oil and hazardous substance liability. The imposition of responsibilities upon, or the institution of any legal action against the permittee under Section 311 of the Act (see section 750-1.24 of this Part) shall be in conformance with regulations promulgated pursuant to Section 311 governing the applicability of Section 311 of the Clean Water Act to discharges from facilities with NPDES permits.

§750-2.3 Inspection and Entry

The permittee shall allow the commissioner, the regional administrator, the applicable county health department, or their authorized representatives, upon the presentation of credentials and other documents as may be required by law, to:

(a) enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of a SPDES permit;

(b) have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit, including records required to be maintained for purposes of operation and maintenance;

(c) inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit;

(d) sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Act or ECL, any substances or parameters at any location; and

(e) enter upon the property of any contributor of wastewater to the system under authority of the permittee's Sewer Use Law, Ordinance (municipalities) or Regulations.

(f) If any part of the permittee's sewer system or sewage treatment works is located on any property not owned by the permittee, the permittee must be able to reasonably demonstrate to the satisfaction of the Department that it has legal access to these locations or facilities and ensure that the commissioner, the regional administrator or the county health department or any authorized representative thereof, upon presentation of credentials, will have access to these locations and facilities.

§750-2.4 Operator and Permittee Liability

(a) Any person who, having any of the culpable mental states defined in Section 15.05 of the Penal Law, shall violate any of the provisions of Titles 1 through 5, 9 through 11 and 19 of Article 17 of ECL or the rules, regulations, orders or determinations of the commissioner promulgated thereto, or the terms of any permit issued thereunder, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than two thousand five hundred dollars nor more than twenty-five thousand dollars per day of violation or by imprisonment for a term of not more than one year, or by both such fine and imprisonment. If the conviction is for an offense committed after a first conviction of such person under this subdivision, punishment shall be by a fine of not more than fifty thousand dollars per day of violation, or by imprisonment for not more than two years, or by both.

(b) Any person is guilty of a Class A misdemeanor who with criminal negligence, as defined in Section 15.05 of the Penal Law,

(1) violates any provision of Titles 7 or 8 of Article 17 of ECL,

(2) violates the rules or regulations promulgated thereunder,

(3) violates any term of any permit issued thereunder,

(4) violates any requirement imposed in a pretreatment program approved pursuant to Section 402(a)(3), 402(b)(8) of the Act (see Section 750-1.24 of this Part), or approved pursuant to Titles 7 or 8 of Article 17 of ECL,

(5) violates any final administrative orders issued pursuant to Article 71 of ECL where an opportunity for a hearing is provided, or

(6) introduces into a sewer system or publicly owned treatment works any pollutant or hazardous substance:

(i) when such person knew that such introduction was likely to cause personal injury or property damage, except if that introduction was in compliance with all applicable federal, state or local requirements or permits, or

(ii) which causes the treatment works to violate any term of any permit issued under Titles 7 or 8 of Article 17 of ECL or the rules or regulations promulgated thereunder except if that introduction was in compliance with all applicable federal, state or local requirements or permits.

(c) Any person is guilty of a Class E felony who knowingly, as defined in Section 15.05 of the Penal Law,

(1) violates any provision of Titles 7 or 8 of Article 17 of ECL,

(2) violates the rules or regulations promulgated thereunder,

(3) violates any term of any permit issued thereunder,

(4) violates any requirement imposed in a pretreatment program approved pursuant to Section 402(a)(3), 402(b)(8) of the Act (see Section 750-1.24 of this Part), or approved pursuant to Titles 7 or 8 of Article 17 of this ECL,

(5) violates any final administrative orders issued pursuant to Article 71 of ECL where an opportunity for a hearing is provided, or

(6) introduces into a sewer system or publicly owned treatment works any pollutant or hazardous substance:

(i) when such person knew that such introduction was likely to cause personal injury or property damage, except if that introduction was in compliance with all applicable federal, state or local requirements or permits, or

(ii) which causes the treatment works to violate any term of any permit issued under Titles 7 or 8 of Article 17 of ECL or the rules or regulations promulgated thereunder except if that introduction was in compliance with all applicable federal, state or local requirements or permits.

(d) Any person is guilty of a Class C felony who intentionally, as defined in Section 15.05 of the Penal Law,

(1) violates

(i) any provision of Titles 7 or 8 of Article 17 of ECL,

(ii) the rules or regulations promulgated thereunder,

(iii) any term of any permit issued thereunder, or

(iv) any final administrative orders issued pursuant to this article where an opportunity for a hearing was provided, and

(2) knows at that time that he thereby places another person who is not a participant in the crime in imminent danger of death or serious bodily injury.

(3) for the purpose of paragraphs (1) and (2) of this subdivision, in determining whether a defendant who is an individual knew that his conduct placed another person in imminent danger of death or serious bodily injury:

(i) the person is responsible only for actual awareness or actual belief that he possessed; and

(ii) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant.

(e) For purposes of subdivisions (b), (c), and (d) of this section, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

(f) Any person shall be guilty of a class E felony who, with intent to deceive, makes any false material statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to Titles 7 or 8 of Article 17 of this chapter or who intentionally falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained pursuant to Titles 7 or 8 or Article 17 of ECL.

(g) A person who violates any of the provisions of, or who fails to perform any duty imposed by Titles 1 through 11 inclusive and Title 19 of Article 17, or the rules, regulations, orders or determinations of the commissioner promulgated thereto or the terms of any permit issued thereunder, shall be liable to a penalty of not to exceed twenty-five thousand dollars per day for each violation, and, in addition thereto, such person may be enjoined from continuing such violation as hereinafter provided. Violation of a permit condition shall constitute grounds for revocation of such permit.

§750-2.5 Routine Monitoring, Recording, and Reporting

(a) GENERAL

(1) The permittee shall comply with all recording, reporting, monitoring and sampling requirements specified in the permit.

(2) Samples and measurements taken to meet the monitoring requirements specified in a SPDES permit shall be representative of the quantity and character of the monitored discharges. Unless otherwise specified in the permit or directed by the regional water engineer in writing, the following shall apply to such sample collection:

(i) A representative sample is one that adequately reflects the actual condition of the wastewater. The most representative sample will be drawn from a point that represents the wastewater discharged. When appropriate, that point should be at a depth where the flow is turbulent and well-mixed and the likelihood of solids settling is minimal.

(ii) For all parameters except volatile organics and oil and grease, composite samples required by a SPDES permit shall be composed of a minimum of 8 grab samples, collected over the specified collection period, either at a constant sample volume for a constant flow interval or at a flow-proportioned sample volume for a constant time interval. Where continuous flow monitoring equipment is not available or where effluent flows do not vary more than ten percent over the course of composite sample collection, composite samples may be composed of equal size grab samples taken at equal time intervals.

(iii) For volatile organics and oil and grease, composite samples required by a SPDES permit shall be collected as individual aliquots that must be combined in the laboratory for analysis. At least 4 (rather than 8 ) aliquots or grab samples should be collected over the specified collection period, either at a constant sample volume for a constant flow interval or at a flow-proportioned sample volume for a constant time interval. Where flow monitoring equipment is not available or where effluent flows do not vary more than ten percent over the course of composite sample collection, composite samples may be composed of equal size grab samples taken at equal time intervals.

(iv) Grab sample means a single sample, taken over a period of time not exceeding 15 minutes.

(v) Sample collection shall be scheduled to be representative of the normal discharge. Representative sample collection schedules include schedules set at least one month prior to when the samples are to be collected. A true and accurate copy of the schedule shall be kept readily available for reference at the wastewater treatment facility and shall be provided to the department upon request. The schedule may only be changed for good cause including but not limited to sampling equipment failure and unanticipated process shutdown. Samples may be scheduled as follows:

(a) randomly;

(b) day of the week or month, provided that scheduling by day of week or month does not persistently coincide with or exclude recurrent discharges;

(c) for stormwater: based on availability of a suitable stormwater event;

(d) any other method of scheduling that is representative and acceptable to the regional water engineer.

(3) Accessible sampling locations must be provided and maintained by the permittee. New sampling locations shall be provided by the permittee if existing locations are deemed unsuitable by the department.

(4) Unless otherwise specified in the permit or directed by the regional water engineer, actual measured values of all positive analytical results obtained above the method detection limit (MDL) for all monitored parameters shall be recorded and reported, as required by the permit.

(5) For instrumentation that is not used by a certified laboratory, but which is used to measure discharges to the environment as specified in a SPDES permit, the permittee shall periodically calibrate and perform maintenance procedures to ensure accuracy of measurements. Verification of maintenance shall be logged into the record book(s) of the facility. The permittee shall notify the department's regional office in the Discharge Monitoring Report if any required instrumentation becomes inoperable. In addition, the permittee shall verify the accuracy of its measuring equipment to the department's regional office or its designated field office upon request.

(6) No person shall falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under the permit.

(b) SIGNATORIES AND CERTIFICATION

(1) All SPDES applications and reports required by a SPDES permit shall be signed as provided in 40 CFR 122.22 (see section 750-1.24 of this Part) except that, in lieu of a signature, the Department may permit the use of a unique identifier assigning responsibility for the veracity of the information contained in an application to the same person or persons that would otherwise be required to sign the application in this section. Such a document with a unique identifier shall be considered a signed document with a certifying signature and a written instrument that could subject the signatory to liability under the New York State penal law for officers concerning perjury and false written statements pursuant to Articles 175 and 210 of said law.

(2) No person shall knowingly make any material false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this permit, including monitoring reports or reports of compliance or noncompliance. Any person who violates this subsection shall be liable for violation of ECL § 71-1933 and subject to a fine and/or imprisonment thereunder.

(3) All applications, reports, or notifications required or authorized to be made or filed by this Article or ECL Article 17, Titles 7 or 8, or by the provisions or conditions of any permit issued pursuant thereto, by or on behalf of a permittee, applicant for a permit or person subject to the requirement of a permit shall be sworn to in respect to all statements of fact therein or shall bear an executed statement as provided in Section 210.45 of the New York State Penal Law to the effect that false statements made therein are made under penalty of perjury.

(c) RECORDING OF MONITORING ACTIVITIES AND RESULTS

(1) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by a SPDES permit, and records of all data used to complete the application for the permit, for a period of at least 5 years from the date of the sample, measurement, report or application. This period may be extended by written request of the department, provided that the extension is necessary to implement the provisions of this Part or ECL and that the reason or reasons for the extension are provided in the request.

(2) Records of monitoring information shall include:

(i)the date, exact place, and time of sampling or measurements;

(ii)the individual(s) who performed the sampling or measurements;

(iii)the date(s) analyses were performed;

(iv)the individual(s) who performed the analyses;

(v)the analytical techniques or methods used;

(vi) the results of such analyses; and

(vii) Quality assurance/quality control documentation.

(3) When records are stored electronically, the records must be preserved in a manner that reasonably assures their integrity and are acceptable to the department. Such records must also be in a format which is accessible to the department.

(4) The permittee shall make available to the department for inspection and copying or furnish to the department within 25 business days of receipt of a department request for such information, any information retained in accordance with this subdivision.

(d) TEST AND ANALYTICAL PROCEDURES

(1) Monitoring and analysis conducted in accordance with an issued SPDES permit must be conducted using test procedures promulgated, pursuant to 40 CFR Part 136 (Test Procedures - see section 750-1.24 of this Part), except:

(i)when the permit specifies an alternative procedure; or

(ii) when the permittee applies to the department and the department approves an alternative test method in accordance with applicable law and regulation.

(2) Any laboratory test or sample analysis required by this permit for which the State Commissioner of Health issues certificates of approval pursuant to section 502 of the Public Health Law shall be conducted by a laboratory that has been issued a certificate of approval.

(3) Application for approval of alternative test procedures shall be made to the department's regional permit administrator, and shall contain:

(i) the name and address of the applicant or the responsible person making the discharge, the DEC permit number and applicable SPDES identification number of the existing or pending permit, name of the permit issuing agency, name and telephone number of applicant's contact person;

(ii) the names of the pollutants or parameters for which an alternate testing procedure is being requested, and the monitoring location(s) at which each testing procedure will be utilized;

(iii) justification for using test procedures, other than those approved in paragraph (a) of this section; and

(iv) a detailed description of the alternate procedure in accordance with requirements set forth 40 CFR Part 136 (see section 750 -1.24) or other applicable law and regulation.

(e) REPORTING OF MONITORING RESULTS AND OTHER INFORMATION

(1) The permittee shall submit the results of any wastewater or ambient monitoring results required by the permit at the end of each month, unless otherwise specified by the department. Such reports shall be made on the reporting forms supplied to the permittee by the department, in a format acceptable to the department, or by the electronic transfer of data as approved by the department. Electronic submissions shall conform to the format, standards and other conditions specified by the department. The regional water engineer may also require the submittal of such other information as is necessary to determine the validity of monitoring results submitted in accordance with permit requirements. In no event shall reports on discharges to surface waters required by this subdivision be submitted at a frequency of less than once per year.

(2) For any parameter, analytical results shall be reported to the same number of significant digits as the permit limits or action level for that parameter. If the permit does not clarify the number of significant digits to which results should be reported, the results must be reported to two significant digits, except in cases of effluent TSS or BOD where single digit effluents are achieved. In these cases single digits may be reported.

(3) On each discharge monitoring report, the permittee shall include the ELAP Identification number or numbers for the certified laboratory or laboratories who performed the analyses, the results of which, are summarized on that Discharge Monitoring Report. Where the monitoring is not performed under ELAP, the permittee shall provide the MDL for the parameter monitored.

(4) If the permittee monitors any pollutant at the discharge or monitoring point or points described in the permit or if the permittee monitors the waters of the state to which the permittee discharges more frequently than required by the permit and, where the analysis for that monitoring is performed by a certified laboratory or where such analysis is not required to be performed by a certified laboratory, such monitoring results shall be appended to the discharge monitoring report for the period during which the monitoring was performed.

§750-2.6 Special Reporting Requirements for Dischargers that are not POTWs

(a) All existing dischargers that are not POTWs must notify the Regional water engineer as soon as they know or have reason to believe that any activity has occurred or will occur that would result in the discharge of any pollutant that is not a "discharge" authorized by a SPDES permit as defined in section 750-1.2 of this Part.

(b) Facility expansion, as defined in section 750-1.2 of this Part, for all existing dischargers that are not POTWs must be reported by submission of a letter to the regional water engineer. The department may determine that additional information must be submitted or that the information submitted by letter to the regional permit administrator must be submitted on a department application form.

The department may determine, on the basis of such information, and any related investigation, inspection or sampling, that a modification of the permit is necessary to assure maintenance of water quality standards or compliance with other provisions of ECL, Article 17 or the Clean Water Act. Conversely, the department may determine in accordance with this Part that the proposed activity does not require a permit modification. Unless the department determines that a permit modification is unnecessary, operations that fit the following criteria, which may result in discharges that are not discharges authorized by the SPDES permit, are prohibited until the permit has been modified in accordance with the Part 621 of this Title:

(1) increases in production or the mass of any one pollutant in wastewater that occur and are expected to continue or have occurred and been existing for more than one year; or

(2) the permittee commences a new operation, of which no operations in this category currently exist at the facility, subject to regulation under 40 CFR 405 to 471 and/or 40 CFR Part 125 (see section 750 - 1.24) which will result in pollutants which the permittee knows or has reason to believe will be discharged (except substances not required to be reported on the appropriate and current New York State SPDES permit application) and which is not described in the SPDES permit application record upon which the current permit is based.

(c) The permittee shall submit written notice to the department if the permitted facility experiences a decrease in production, a decrease of process flow, or a facility modification, where such change results in a greater than 20 percent decrease in the discharges of a pollutant explicitly limited in a SPDES permit and the limit was based on production or flow, provided that such decrease in discharge is expected to continue or has been existing for more than one year.

§750-2.7 Incident Reporting

(a) ANTICIPATED NONCOMPLIANCE. The permittee shall give at least 45 days advance notice to the Regional water engineer of any change in the permitted facility or activity that the permittee knows or has reason to know would occur as part of a construction project, which is part of the permittee's routine maintenance program, or which the permittee knows or has reason to know about 60 or more days before it occurs, and that is very likely or certain to result in a bypass or other noncompliance with permit requirements.

(1) Such notice shall contain:

(i) a description of the treatment units to be effected;

(ii) the anticipated character and volume of wastewater and/or stormwater to be discharged;

(iii) the need for the changes;

(iv) the anticipated duration of the non-compliance;

(v) the receiving stream for the non-complying wastewater and/or stormwater;

(vi) the anticipated benefits of the change;

(vi) the alternatives considered and

(vii) such additional information requested by the Regional water engineer to assess the effects of and need for such a change.

(2) In the time between notification of a planned change and the date scheduled for the change the department may choose to do one or more of the following:

(i) Require additional information that can reasonably be used to decide the necessity of such non-compliance;

(ii) Require that the permittee delay the planned change up to 45 additional days until the department may adequately assess the necessity for the planned change;

(iii) Require the permittee to modify the planned change;

(iv) Prohibit the planned change; or

(v) Apply no conditions to the planned change.

(b) TWO HOUR ORAL REPORTING OF BYPASS, UPSET OR OTHER INCIDENT. For discharges that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes, the permittee shall, within two hours of becoming aware of the discharge, report orally to the regional water engineer and the local health department of any discharge of untreated or partially treated sewage, except a discharge due to a properly operating, wet weather combined sewer overflow or a discharge in accordance with a department approved plan for managing wastewater (provided that such plan is in compliance with applicable law and regulation). Each permittee that must provide oral report within two hours under this subdivision for incidents resulting in discharges from the permittee's site or service area will be so notified in writing by the regional water engineer. Such a report shall include:

(1) A brief description of the bypass, upset, or other incident;

(2) The location of the bypass, upset or other incident including the receiving water effected by the bypass, upset, or other incident;

(3) The estimated volume and characteristics of the discharge at the time of the oral report;

(4) A brief description of the measures taken to end the bypass, upset, or other incident; and

(5) An estimate when the bypass, upset, or other incident will be over and the total expected volume of the discharge.

(c) TWENTY FOUR HOUR ORAL REPORTING OF BYPASS, UPSET OR OTHER INCIDENT. The permittee shall report, including the same information required to be reported under subdivision (b) of this section, orally to the regional water engineer within 24 hours from the time the permittee becomes aware of any of the following incidents:

(1) A discharge of untreated or partially treated sewage that would otherwise be treated, except a discharge due to a properly operating wet weather combined sewer overflow or a discharge in accordance with a department approved plan for managing wastewater and/or stormwater (provided that such plan is in compliance with applicable law and regulation);

(2) A discharge of untreated wastewater and/or stormwater that would otherwise be treated, except a discharge in accordance with a department approved plan for managing wastewater (provided that such plan is in compliance with applicable law and regulation);

(3) A spill that may result in a discharge that may:

(i) violate permit limitations of pollutants limited in the SPDES permit;

(ii) exceed an action level or more than one action level in the SPDES permit;

(iii) cause discharges of pollutants not explicitly listed in the SPDES permit, in amounts in excess of normal effluent variability of the level of discharge that may reasonably be expected for that pollutant from information provided in the SPDES permit application record; or

(iv) which would result in dilution in lieu of treatment of a discharge authorized by a SPDES Permit;

(4) A spill to waters of the state of greater than the reportable quantity for releases to water as set forth in Part 597 of this Title; or

(5) A bypass, upset or other incident that a reasonable practitioner in water pollution control would consider to be similar in severity and consequences to the incidents set forth in the other paragraphs of this subdivision.

(d) FIVE DAY WRITTEN INCIDENT REPORT. A written report to the Regional water engineer of a bypass, upset or other incident reported under subdivisions (b) and (c) of this subsection shall also be provided within five (5) days of the time the permittee becomes aware of the circumstances. The written report shall contain a description of the bypass, upset, or other incident and its cause; the period of the bypass, upset, or other incident, including exact dates and times, and if the bypass, upset, or other incident has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent the bypass, upset, or other incident and its reoccurrence. The regional water engineer may waive the written report on a case-by-case basis if the oral report has been received within the time periods required under subdivisions (b) and (c) of this subsection.

(e) ADDITIONAL REPORTING. The permittee shall report all instances of noncompliance with permit conditions not otherwise required to be reported under these regulations or the SPDES permit, with each submitted copy of its discharge monitoring reports until such noncompliance ceases. Such noncompliance reports shall contain the same information required to be submitted under subdivision (d) of this section.

(f) DUTY TO MITIGATE. The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of the permit, which has a reasonable likelihood of adversely affecting human health or the environment.

(g) DUTY TO ASSESS. Where a bypass, upset, or other incident occurs as defined in subdivision (b) or subdivision (c) that can reasonably be expected to create detectable discharges of a substance where that substance was not detectable prior to the bypass, upset, or other incident or the bypass, upset, or other incident can reasonably be expected to increase the discharge of a substance or substances by 20 percent or more, the permittee shall collect at least one representative sample for each day of discharge effected by the bypass, upset or other incident in a manner that can be used to assess compliance with the permit. Each sample should be monitored for the parameters which the permittee knows or has reason to believe will be detectable or increased by 20 percent or more in the discharge due to the bypass, upset, or other incident.

§750-2.8 Disposal System Operation and Quality Control

(a) GENERAL

(1) The disposal system shall not receive or be committed to receive wastes beyond its design capacity for volume and character of wastes treated without written approval of the regional water engineer. Nor shall the system operation be impaired by alterations to the type, degree, or capacity of treatment provided; disposal of treated effluent; or treatment and disposal of separated scum, liquids, solids or combination thereof resulting from the treatment process without written approval of the department or its duly authorized representative.

(2) The permittee shall, at all times, properly operate and maintain all disposal facilities, which are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance also includes as a minimum, the following:

(i) A preventive/corrective maintenance program for all critical facilities and systems of treatment and control (or related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of the permit. A facility or system is critical if it contains process equipment that is essential for proper operation and necessary to achieve compliance with the applicable SPDES permit effluent limits;

(ii) Written procedures for operation and maintenance , training new operators, adequate laboratory controls and appropriate quality assurance. This provision requires the operation of installed backup or auxiliary facilities or similar systems only when the operation is necessary to achieve compliance with the conditions of the permit.

(3) When required under Part 650 of this Title, sufficient personnel meeting qualifications for operators of sewage treatment works as required therein and additional maintenance personnel shall be employed to satisfactorily operate and maintain the treatment works.

(4) The permittee shall not discharge floating solids or visible foam.

(5) The permittee and operator shall operate the wastewater treatment facility in such a manner as to minimize the discharge of pollutants to a degree that is achievable when compared to standard practices for operation of such wastewater treatment facilities.

(6) The permittee and operator shall operate the wastewater treatment facility in such a manner as to minimize odors and other nuisance conditions to a degree that is achievable when compared to standard practices for operation of such wastewater treatment facilities.

(b) BYPASS

(1) Bypass not exceeding limitations. The permittee may allow any bypass to occur that does not cause effluent limitations to be violated, but only if it also is for essential maintenance, repair or replacement to assure efficient and proper operation. These bypasses are not subject to the paragraph (2) of this subdivision, provided that written notice is submitted prior to the bypass in accordance with subdivision 2.7(a) of this Part (if anticipated) or (if unanticipated) with the discharge monitoring report for the reporting period during with the bypass occurred. Covered under this paragraph is the diversion of wastewater or stormwater around any portion of a treatment facility in accordance with a department approved plan for wastewater or stormwater management (provided that such plan is in compliance with applicable law and regulation).

(2) Prohibition of bypass. Except as provided for in paragraph (1) of this subdivision, bypass is prohibited, and the department may take enforcement action against a permittee for bypass, unless:

(i) bypass was unavoidable to prevent loss of life, personal injury, public health hazard, environmental degradation or severe property damage;

(ii) there were no feasible alternatives to the bypass such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal period of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance or if designed and installed backup equipment that could have prevented or mitigated the impact of the bypass is not operating during the bypass; and

(iii) the permittee submitted notices as required under section 2.7 of this subpart and, excepting emergency conditions, the proposed bypass was accepted by the department.

(c) UPSET

(1) Effect of an upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such permit effluent limitations if the requirements of paragraph (2) of this subdivision are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review.

(2) Conditions necessary for a demonstration of upset. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operation logs, or other relevant evidence that:

(i) an upset occurred and that the permittee can identify the cause(s) of the upset;

(ii) the permitted facility was, at the time, being properly operated; and

(iii) the permittee submitted notice of the incident for which an upset defense in being claimed as required in section 750-2.7 of this Part.

(iv) the permittee implemented any mitigation and assessment required under section 750-2.7, subdivisions (f) and (g) of this Part.

(3) Burden of proof. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

(d) SPECIAL CONDITION - DISPOSAL SYSTEMS WITH SEPTIC TANKS. Unless otherwise directed by the regional water engineer, if a septic tank is installed as part of the disposal system, it shall be inspected by the permittee or his agent for scum and sludge accumulation at intervals not to exceed one year's duration, and such accumulation will be removed before the depth of either exceeds one-fourth (1/4) of the liquid depth so that no settleable solids or scum will leave in the septic tank effluent. Such accumulation shall be disposed of in accordance with all applicable law and regulation.

(e) RESIDUALS MANAGEMENT . The permittee shall properly store or dispose of collected screenings, sludges, other solids or precipitates removed from the permitted discharges, intakes or supply waters. Proper storage or disposal shall prevent creation of nuisance conditions or the entry of such materials into state waters and shall be in a manner approved by the department. Any live fish, shellfish, or other animals collected or trapped as a result of intake water screening or treatment should be returned to their water body habitat. The permittee shall maintain records of disposal on all effluent screenings, sludges and other solids associated with the discharge(s) herein described. The following data shall be compiled and reported to the department upon request:

(1) the sources of the materials to be disposed of;

(2) the approximate volumes, weights, water content and (if other than sewage sludge) chemical composition;

(3) the method by which they were removed and transported, including the name and permit number of the waste transporter; and

(4) their final disposal locations.

(f) BIOSOLIDS REUSE - Permittees shall make reasonable efforts, to the extent practical, reuse biosolids.

§750-2.9 Additional Conditions Applicable to a Publicly Owned Treatment Works(POTWs)

(a) GENERAL

(1) In addition to the requirements set forth in this subpart, all POTWs must provide adequate notice to the department of the following:

(i) As set forth in department guidance on what is a substantial change in volume or character of pollutants introduced into a POTW, any such change.

(ii) For purposes of this paragraph, adequate notice shall include information on:

(a) the quality and quantity of effluent introduced into the POTW; and

(b) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

(2) If the department determines, on the basis of a notice provided pursuant to paragraph (1) of this subdivision and any related investigation, inspection or sampling, that a modification of a permit is necessary to assure maintenance of water quality standards and guidance values or compliance with other provisions of ECL Article 17, this Part, or the Act, then the department may propose such a modification. Unless the department determines that such permit modification is unnecessary, the noticed Act is prohibited until the permit has been modified pursuant to Part 621 of this title.

(3) The permittee shall identify all inflow to the tributary system and remove excessive infiltration/inflow to an extent that is economically feasible.

(4) The permittee shall enact, maintain and enforce or cause to be enacted, maintained and enforced up-to-date and effective sewer use law in all parts of the POTW service area. Such enactment and enforcement shall include intermunicipal agreements and/or other enforceable legal instruments that allow the permittee to control discharges, either directly or through jurisdictions contributing flows to the POTW, flow and loads to the POTW as well as discharges to the POTW.

(5) New connections to a publicly owned sewer system or a privatized municipal sewer system are prohibited when the permittee is notified by the department:

(i) that the discharge(s) regulated by a SPDES permit create(s) or is likely to create a public health or potential public health hazard, a contravention of water quality standards or guidance values or the impairment of the best use of waters, as determined by the commissioner; or

(ii) that the permittee has failed or is likely to fail to carry out, meet or comply with any limit or requirement of the permit, compliance schedule, order of the department, judicial order, or consent decree.

(6) The provisions provided for in paragraph (5) of this subdivision shall remain in effect until the permittee can demonstrate to the department's satisfaction and approval that adequate available capacity exists in the plant and that the facility is in full compliance with all of the effluent limitations required by the permit.

(b) NATIONAL PRETREATMENT STANDARDS

(1) All POTWs shall comply with the provisions contained in 40 CFR 403.5(a), (b), (c) and (d) (see 750-1.24 of this Part).

(2) EPA and State Enforcement Actions. If, within 30 days after notice of an interference or pass-through violation has been sent by EPA or the department to the POTW, and to persons or groups who have requested such notice, the POTW fails to commence appropriate enforcement action to correct the violation, EPA and the department may take appropriate enforcement action.

(3) POTWs required by the department to develop a pretreatment program in accordance with 40 CFR 403.8 shall submit an approvable program application in accordance with 40 CFR 403.8 (see section 750 -1.24 of this Part).

(4) The approval authority, as defined by 40 CFR 403.3 (see section 750-1.24 of this Part), shall review, require changes to, approve and/or disapprove such a program in accordance with 40 CFR 403.9 and 403.11(see section 750-1.24 of this Part).

(5) POTWs and industrial users shall submit reports as required in accordance with 40 CFR 403.12 (see section 750 - 1.24 of this Part).

(6) Industrial users may obtain intake credits in accordance with 40 CFR 403.15 (see section 750 - 1.24 of this Part).

(7) Modifications to pretreatment programs shall be made in accordance with 40 CFR 403.18 (see section 750 - 1.24 of this Part).

(c) POTW DESIGN, PLANNING AND FLOW MANAGEMENT

(1) Flow Management Plan

(i) Within 120 days of when the permittee determines in accordance with paragraph 4 of this subdivision that the annual average flow value for a calendar year to a POTW has reached or exceeded 95 percent of that POTW's design flow, the permittee shall submit to the regional water engineer a flow management plan to identify and implement reductions in hydraulic loading to the POTW treatment plant or failing that, approvable engineering reports, plans and specifications and/or capital improvements as necessary to stabilize annual average flows below the POTW treatment plant design flow. This plan shall be certified by a professional engineer licensed to practice in the State of New York and endorsed by the chief fiscal officer of the municipality. The provisions of the plan may reflect new efforts or may refer to existing, ongoing efforts. The flow management plan shall, at a minimum, include provisions for:

(a) A statement to the effect that the permittee has the authority in all parts of the POTW service area to implement or cause to be implemented the provisions of this subdivision or, if the permittee does not have such authority, a proposed schedule, not to exceed three years, to obtain such authority or a statement from the permittee's designated legal representative that existing law precludes the permittee from obtaining such authority;

(b) An inventory of all known facilities/projects that have applied to connect to the sewer system and a determination if there is capacity for connection;

(c) A schedule of implementation for all flow reduction measures identified herein;

(d) A map delineating the service area as defined; and

(e) A description of information that will be reported during implementation of the plan to the regional water engineer and a schedule for such reporting.

(ii) The flow management plan required by subparagraph (i) of this paragraph shall also include provisions for implementation of any or all of the following that are necessary to stabilize influent flows below design flows:

(a) Water conservation measures to reduce customer usage by measures including but not limited to customer metering, meter calibration, retrofitting existing plumbing fixtures with water conservation fixtures and revision of water rate structures;

(b) Reduction of infiltration and inflow through continuous measures including but not limited to sewer system metering, evaluation and rehabilitation, removal of roof leaders and footing drains from separate sanitary sewers and installation of separate storm sewers;

(c) Prevention of future sources of infiltration and inflow where feasible through measures including but not limited to implementation of standards for sewer installation and requirements to provide for adequate drainage from roof leaders and footing drains in new construction;

(d) Measures to maximize sewer system and sewage treatment works capacity at a minimum cost; and/or

(e) Approvable engineering reports and/or plans and specifications to assure annual average flows do not exceed 95 percent of the POTW treatment plant design flow.

(f) Capital improvements necessary to assure annual average flows do not exceed 95 percent of the POTW treatment plant design flow.

(iii) Within 90 days of submittal to the regional water engineer of the plan required under subparagraphs (i) and (ii) of this paragraph, the permittee shall begin to implement the provisions of said program in accordance with the proposed schedule or cause the provisions of said program to be implemented by another party.

(iv) The regional water engineer may object to the plan, or implementation of the plan, submitted in accordance with subparagraph (i) and (ii) of this paragraph if the plan does not provide for substantive and effective measures to reduce hydraulic loading to the POTW. Within 90 days of receipt of written notification from the regional water engineer documenting the aspects of the plan that must be revised, the permittee shall submit a revised plan that addresses the department's objection(s).

(2) Planning

(i) Within 120 days of when the permittee determines that the actual influent mass loading of Biochemical Oxygen Demand or Total Suspended Solids to a POTW has reached or exceeded the design influent loading for those parameters for any eight calendar months during a calendar year, the permittee shall submit a plan for future growth at the POTW. The plan shall include:

(a) Provisions for obtaining any necessary funding; and

(b) Provisions for preparation and submission to the regional water engineer of approvable engineering reports and/or plans and specifications to provide for growth of discharges in the POTW service area.

(c) A demonstration of the permittee's ability to impose a connection moratorium in any and all parts of the service area or, if the permittee does not have such authority, a proposed schedule, not to exceed three years, to obtain such authority or a statement from the permittee's designated legal representative that existing law precludes the permittee from obtaining such authority.

(ii) The regional water engineer may object to the plan, or implementation of the plan, submitted in accordance with subparagraph (i) of this paragraph if the plan does not provide for substantive and effective measures to accommodate future growth of discharges from the POTW service area. Within 90 days of receipt of written notification from the regional water engineer documenting the aspects of the plan that must be revised, the permittee shall submit an approvable, revised plan that addresses the department's objection(s).

(iii) Within 90 days of submittal to the regional water engineer of the plan required under subparagraph (i) of this paragraph, the permittee shall begin to implement the plan to obtain the authority required under clause '(c)' of subparagraph (i) of this paragraph.

(3) Plan Implementation and Sewer Connection Moratorium. For POTWs that have exceeded the design influent loading criteria set forth in paragraph (2) of this subdivision, within 90 days of when the permittee determines that, in accordance with the annual review required by paragraph (4) of this subdivision, that the effluent discharge from a publicly owned treatment works has exceeded a SPDES permit limit for Biochemical Oxygen Demand or Ultimate Oxygen Demand for any four or more months during two consecutive calendar quarters, or a SPDES permit limit for Total Suspended Solids for any four or more months during two consecutive calendar quarters , the permittee shall:

(i) Begin to implement the plan developed in accordance with paragraph (2) of this subdivision or in accordance with subparagraph (i) of this paragraph; and

(ii) Cease the further approval of sewer connections to the POTW;

(4) Annual Certification. The chief fiscal officer of any municipality subject to this subdivision shall certify in writing to the department as an attachment to its February discharge monitoring report that the municipality is complying with the provisions of this subdivision and, if applicable, is complying with the implementation schedule in the program adopted in accordance with paragraphs 1, 2 and 3 of this subdivision or if such compliance certification cannot be provided to the department, satisfactory explanation for deviation from the provisions of this subdivision must be provided.

(5) Rescission of Plan Requirements or Moratoria. The regional water engineer may rescind or hold in abeyance any or all of the conditions imposed under this subdivision provided the permittee can demonstrate to the satisfaction of the department that:

(i) The conditions were implemented on the basis of erroneous data; or

(ii) The situation that gave rise to the imposition of the conditions has been adequately addressed; or

(iii) There is an existing or potential public health nuisance or hazard as determined by the state Department of Health, that is best remediated by rescinding or holding in abeyance the conditions; or

(iv) All compliance conditions in a SPDES permit or a judicially or administratively imposed order have been or will be met;

(6) Violations of Permit Limits. Compliance with this section does not, in any way, shield the permittee from enforcement actions for violations of SPDES permit limits.

(7) The regional water engineer may, by written approval, upon adequate demonstration of compelling need, allow for relaxation of schedules contained in this subdivision.

§750-2.10 Special Provisions - New or Modified Disposal Systems

(a) Except as provided in subdivision (h) of this section, prior to construction of any new or modified waste disposal system or modification of a facility or service area generating wastewater that could alter the design volume of, or the method or effect of treatment or disposing of the sewage, industrial waste or other wastes, from an existing disposal system, provided that discharge from such system is required in accordance with this Part to be authorized under a SPDES permit, the permittee shall submit to the regional water engineer an approvable engineering report, plans, and specifications that have been prepared by a person or firm licensed to practice professional engineering in the State of New York in accordance with standards accepted by the department.

(b) The construction of such new or modified disposal system shall not start until the discharger receives written approval of the system from the department and an issued permit. The department may require the discharger to remove any constructed disposal system or portion thereof if such a system or portion thereof is constructed prior to written approval from the department. The department may approve portions of disposal systems to allow for design and construction of disposal systems to proceed at the same time.

(c) The construction of such new or modified disposal system shall be under the general supervision of a person or firm licensed to practice professional engineering in the State of New York. Upon completion of construction, that person or firm shall certify to the department that the disposal system has been fully completed in accordance with the approved engineering report, plans and specifications, permit and letter of approval; and the permittee shall receive written acceptance of such certificate from the department prior to commencing discharge.

(d) The department reviews disposal system reports, plans, and specifications for treatment process capability only, and approval does not represent any opinion of the system's structural integrity.

(e) Department approval of the disposal system or service area does not relieve the permittee of any responsibility for compliance with its SPDES permit.

(f) The department may accept, in lieu of submission of engineering reports or plans and specifications, certification by a person or firm licensed to practice professional engineering in the State of New York that the design of the disposal system or service area conform to design standards accepted by the department. The department may require certification by letter or form (where the form may include but is not limited to a checklist consistent with the applicable standards). Such certifications shall be deemed notifications in accordance with ECL Section 17-0819.

(g) The following standards are accepted by the department:

(1) Ten States Standards (see section 750-1.24) for use in designing POTWs and POTW collection systems;

(2) Intermediate Design Standards (see section 750-1.24) for use in designing facilities that are not POTWs, which treat only sanitary sewage; and

(3) Other standards that are acceptable by the department.

(h) Submission of approvable engineering report, plans, and specifications is not required where:

(1) the treatment unit is temporarily (less than one year) installed for benchmarking and/or troubleshooting and the permittee has provided notification to the Regional water engineer at least 30 days prior to installation.

(2) an equivalent or superior treatment unit is installed.

(3) changes to treatment units do not have a reasonable potential to affect the discharge.

(i) Sewer Extensions, public or private, must be reviewed and approved in accordance with this section before construction and connection to any conveyance tributary to a SPDES permitted discharge.

§750-2.11 Closure Requirements for Wastewater Treatment Facilities

(a) This section applies to any and all disposal systems permanently removed from use or operation at SPDES permitted facilities or at facilities for which a SPDES permit has been revoked or an application for renewal denied, unless a judicial or administrative stay is in effect. The intent of this section is to protect public safety and health and to assure that no contamination of ground or surface water will occur as a result of removing such systems from service either through the act of closure or through continuing the discharge of pollutants into or through equipment; or through leaking, leaching, or discharge of pollutants from wastewater or residuals remaining in disposal systems which has been removed from use but remains on site.

(b) The closure of a disposal system means either the termination of the source of wastewater or stormwater, or the permitted conveyance of wastewater or stormwater to an alternate location (such as a regional facility) in such a manner that no further treatment storage or conveyance of wastewater or stormwater is performed by the system.

(c) Disposal system closures shall conform with the following procedures:

(1) On or before 60 calendar days prior to taking the system out of service a permittee shall:

(i) Submit to the Regional water engineer the following information concerning closure activities:

(a) The date the system will cease operation;

(b) The date the influent and effluent pipes will be sealed;

(c) Plans (signed and sealed by a New York State licensed professional engineer) for final disposition of the physical facilities, including all treatment units, outfall line, and all mechanical and electrical equipment and piping;

(d) Plans (signed and sealed by a New York State licensed professional engineer) for elimination of all equipment and/or conditions that could possibly pose a safety hazard, either during or after shut-down of operations;

(e) Verification that there are no lines in the collection system which are cross connected (receiving both sanitary and storm water) or which do not contain adequate conveyance capacity.

(f) The name of the licensed individual responsible for the maintenance and operation of the wastewater pumping station and/or disposal system systems that are still to be maintained; and

(ii) Notify the Regional water engineer, in writing, concerning any deactivated lagoons or other actual or potential discharges to ground water which may exist at the site.

(2) Proper management and/or removal of all residual materials (collected grit and screenings, scums, sand bed material, and dried or liquid sludges), as well as filter media, and all other solids from the treatment process that may remain in the abandoned treatment works is required.

(i) The permittee shall submit to the Regional water engineer proof of ownership of or contractual arrangement with an operation or operations permitted to manage all such waste materials. A contract with a hauler will only be accepted as proof of proper waste management if documentation of management at an approved site or sites is included. In addition, all necessary State or Federal permits/approvals must accompany the submission.

(ii) All residual material shall be removed within 180 calendar days after the system is taken out of service. Proof of proper residuals management shall be submitted to the Regional water engineer within 30 calendar days after their removal. The dates of removal and quantities removed shall be specified.

(d) Upon satisfaction of closure requirements specified in (c) above, the Regional water engineer shall be contacted, in writing, to schedule a final site inspection of any disposal system which had a SPDES discharge permit to verify that influent and effluent pipes have been sealed and that all solid and residual materials related to the treatment process have been removed.