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Regulatory Impact Statement 6 NYCRR Parts 750 and 621 SPRTK

1. 'Statutory authority.' The rule is authorized by Environmental Conservation Law (ECL) section 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK), which took effect on May 1, 2013 and expressly directs DEC to promulgate rules and regulations that are necessary to implement this statute (ECL 17-0826-a (2), (4)). SPRTK requires POTWs and operators of POSSs to report untreated and partially treated sewage discharges to DEC and the local health department, or if there is none, the New York State Department of Health (NYSDOH) immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit does not need to be reported. Under existing regulations, reporting within two hours of discovery is limited to discharges by State Pollutant Discharge Elimination System (SPDES) permittees (which consist primarily of POTWs, commercial businesses and industrial facilities) that would affect bathing areas during the bathing season, shellfishing or public drinking water intakes. Therefore, it is necessary to revise the regulations to be consistent with the new broader two hour reporting obligation.

In addition to the specific statutory authority for the rule cited above, the ECL provides statutory authority for guaranteeing beneficial use of the environment without risk to health and safety (ECL 1-0101 (3) (b)); promoting and coordinating management of water, land, fish, wildlife, and air resources to assure their protection, enhancement, and balanced utilization consistent with the environmental policy of the state (ECL 3-0301 (1) (b)); and monitoring the environment to afford more effective and efficient control practices to identify changes and conditions in ecological systems and to warn of emergency conditions (ECL 3-0301 (1) (t)). In conjunction with this broad authority, ECL 3-0301 (2) (m) authorizes the DEC to "[a]dopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of [the ECL]." Finally, the ECL provides DEC with specific authority to promulgate regulations with respect to the SPDES program in ECL 17-0303 (3), 17-0803 and 17-0804.

2. 'Legislative objectives.' The rule accords with the public policy objectives that the Legislature sought to advance by enacting SPRTK. One of the objectives of SPRTK is to protect the public health and the environment by requiring POTWs and operators of POSSs to report untreated and partially treated sewage discharges to DEC and health authorities immediately, but in no case later than two hours from discovery of the discharge, irrespective of the area impacted by the discharge, so that these agencies may respond timely and appropriately. The rule implements this objective by obligating owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities within this timeframe regardless of the location of the discharge or the waterbody it may impact. The rule also requires these entities to continue reporting the discharge for each day after the initial report is made until the discharge terminates. In contrast, existing regulations provide that SPDES permittees are only required to report untreated and partially treated sewage discharges within two hours of discovery if the discharge would affect a bathing area during the bathing season, shellfishing or a public drinking water intake and there is no obligation to continue reporting after the initial report is made.

In addition, the Legislature intended to provide notification of these discharges as soon as possible to nearby municipalities that may be affected and the general public so that these municipalities may respond appropriately and the public may avoid exposure. Existing regulations do not provide for such notifications. The rule accords with this public policy objective by providing that owners and operators of POTWs and POSSs must notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. The general public must also be notified of surface water discharges within this same timeframe through appropriate electronic media as determined by DEC.

3. 'Needs and benefits.' The rule requires owners and operators of publicly owned treatment works (POTWs) and publicly owned sewer systems (POSSs) to report untreated and partially treated sewage discharges to the New York State Department of Environmental Conservation (DEC) and health authorities immediately, but in no case later than two hours from discovery of the discharge. Partially treated sewage discharged directly from a POTW that is in compliance with a department approved plan or permit does not need to be reported. Furthermore, the rule obligates owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge and also requires them to notify the general public of surface water discharges within the same timeframe. Consistent with two hour reporting, four hour notifications to municipalities and the general public will not apply to partially treated sewage discharged directly from a POTW that is in compliance with a department approved plan or permit. Under the rule, owners and operators of POTWs and POSSs need to continue reporting untreated and partially treated sewage discharges for each day after the initial report is made until the discharge terminates. On the day that the discharge terminates, notification that the discharge has terminated may be made in lieu of the daily report. Daily and termination reports must be made within 24 hours of the previous report and contain the same information as the initial discharge report except that the Department may modify or waive daily and termination reports on a case by case basis if acceptable alternate reporting methods are available. Daily and termination reports are not required for wet weather combined sewer overflow events.

Untreated and partially treated sewage contains pathogens. The most common pathogens in sewage are bacteria, parasites and viruses, all of which can cause a variety of acute illnesses such as diarrhea and infections. See Health Risks of Sewage fact sheet - American Rivers; www.american rivers.org. These symptoms usually pass in several days or weeks with no lasting effects, although in some instances they can cause serious long term health impacts or even death. Id.. Children, the elderly, and those with weak immune systems are most vulnerable. Id.. Therefore, it is important that the public be notified as soon as possible of untreated and partially treated sewage discharges to avoid exposure to untreated and partially treated sewage. This reporting will also allow state and local authorities to quickly respond and take corrective measures. In this regard, the rule will provide greater public awareness and be protective of the environment and public health.

DEC and NYSDOH will use sewage reports to evaluate and respond to incidents based on the severity of the potential environmental and public health impact. In this regard, reporting of sewage discharges may be used to assist DEC in making decisions on the closing of shellfish lands pursuant to 6 NYCRR section 41.4 and prohibiting shellfish activities pursuant to 6 NYCRR sections 42.17 and 47.4. DEC will also use sewage reports to direct wastewater utilities to take short term corrective action and to determine wastewater utility liability. DEC may take formal or informal enforcement action against wastewater utilities, including assessment of penalties and the institution of permanent corrective measures.

Reported sewage discharge information may also be used by NYSDOH and local health departments to assess the potential impact on public water supplies pursuant to 10 NYCRR Subpart 5-1 and to take corrective measures, if needed. Additionally, NYSDOH and local health departments may use this information to provide guidance and assistance on behalf of private water supplies when contamination events occur. Furthermore, reports of sewage discharges may be used by NYSDOH and local health departments to make decisions on the regulation of bathing beaches pursuant to Public Health Law section 225 and 10 NYCRR Subpart 6-2. Furthermore, by requiring additional reporting for each day after the initial report is made until the discharge terminates, the status of the discharge may be tracked to conclusion.

The rule will also benefit the general public by implementing the statute's new four hour notification requirement. Specifically, the rule requires owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge. The rule also obligates these entities to notify the general public of surface water discharges within this same timeframe as these discharges may present a threat to public health. The rule also benefits the public by obligating POTWs and POSSs to expeditiously issue advisories for certain CSOs as specified in the rule.

DEC has currently selected the NY-ALERT system maintained by the Department of Homeland Security and Emergency Services ("DHSES") to implement the electronic reporting and notification requirements of the rule consisting of two hour reporting, daily and termination reports, four hour notifications, and CSO advisories. In this regard, the rule promotes prompt responses by state and local authorities to these discharges and helps protect the public from exposure to untreated and partially treated sewage.

4. 'Costs.' Some municipalities that have POTWs or POSSs (or their contractors) may need to upgrade their computer systems to comply with the electronic reporting and notification provisions of the rule. The cost to a municipality (or its contractor) to upgrade its computer system to comply with the rule will be a single expenditure of approximately $1,000. It is estimated that 140 municipalities (or their contractors) will need to incur this expense. In addition, some municipalities may need to hire new employees or extend the work hours of current employees on an annual basis if existing personnel are unable to handle the responsibilities of the rule during current work hours. It is estimated that the pay rate for a qualified person to carry out the duties associated with the rule will be $34.80 to $60.85 per hour. Some local health departments are also expected to incur expenses of approximately $1,000 to upgrade their computer systems as well as minimal annual expenses associated with employee services.

There are approximately 620 permitted POTWs and 300 identified POSSs statewide. DEC estimates that 890 municipalities own a single POTW or POSS and that the remaining 30 POTWs and POSSs are owned by municipalities that own more than one of these facilities. DEC anticipates that each POTW and POSS will have, on average, two (2) reportable sanitary sewer overflow events per year with a de minimis cost for reporting and record keeping. Some communities, however, are expected to have a considerable number of combined sewer overflow events each year. The final rule requires that "for combined sewer overflows for which real-time telemetered discharge monitoring and detection does not exist, owners and operators of POTWs and POSSs must expeditiously issue advisories to the general public through appropriate electronic media as determined by the department when, based on actual rainfall data or predictive models, enough rain has fallen that combined sewer overflows may discharge." These advisories may be made on a water body basis rather than by individual combined sewer overflow points. SPRTK requires that the reporting be accomplished "to the extent knowable with existing systems and models." Therefore, these regulations do not obligate communities with combined sewers to develop and operate discharge reporting systems if they did not exist prior to May 1, 2013, the effective date of SPRTK. As such, these regulations impose no cost to develop CSO reporting systems. However, DEC may require discharge reporting systems to be developed and operated pursuant to SPDES permits or consent orders issued to communities with combined sewers.

DEC has selected the NY-ALERT system to implement the reporting and notification provisions of the rule. The necessary upgrade to this system is expected to cost DEC approximately $50,000. This estimate was supplied by Buffalo Computer Graphics, the NY-ALERT consultant for DHSES. Furthermore, NYS Information Technology Services estimates that DEC will need to spend approximately $125,000 to upgrade its own computer systems so that it may post reported information expeditiously to its website as required by the statute.

An exact cost statement of the projected costs to the regulated entities cannot be provided at this time because the potential cost to upgrade their computer systems and hire personnel is dependent upon the choices to be made by these entities. Likewise, it is not possible to provide an exact projected cost for DEC to upgrade the state's computer systems since this expense depends upon the technology selected and the supplier of that technology.

5. 'Local government mandates.' The rule requires owners and operators of POTWs and POSSs to report untreated and partially treated sewage discharges to DEC and health authorities immediately, but in no case later than two hours from discovery of the discharge and for each day after the initial report is made until the discharge terminates. This reporting is required irrespective of the area impacted by the discharge, except that reporting is not required if partially treated sewage is discharged directly from a POTW that is in compliance with a DEC approved plan or permit. The rule specifies the information which is required to be provided in the reports to the extent knowable with existing systems and models, including the date and time of the discovery of the discharge, the location of the discharge and the receiving water effected, the estimated volume and treated state of the discharge, the measures taken and planned to contain the discharges except for wet weather combined sewer overflow discharges, the expected duration of the discharge, and the reason for the discharge. This information is required by SPRTK (ECL 17-0826-a (1) (a)-(f)).

Under existing regulations, SPDES permittees, which consist primarily of POTWs and privately owned commercial and industrial facilities, are only required to report untreated and partially treated sewage discharges within two hours of discovery if the discharge would affect a bathing area during the bathing season, shellfishing or a public drinking water intake, while untreated and partially treated sewage discharges affecting other areas must generally be reported orally within twenty-four hours of discovery. The rule broadens the two hour reporting obligation with respect to POTWs and eliminates current twenty-four hour oral reporting by POTW SPDES permittees of those discharges that would now be covered by the new two hour reporting requirement. The rule also extends the new two hour reporting obligation to owners and operators of POSSs which are not currently subject to two hour reporting and requires that reporting by owners and operators of POTWs and POSSs continue for each day after the initial report is made until the discharge terminates.

In addition, the rule requires owners and operators of POTWs and POSSs to notify the chief elected official, or authorized designee, of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges to surface water as soon as possible, but no later than four hours from discovery of the discharge and further obligates POTWs and POSSs to notify the general public of surface water discharges within this same timeframe. However, the municipal and public notification requirements do not apply to partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. For purposes of the municipal notification, a 'municipality' has been defined as "a city, town or village," and an 'adjoining municipality' has been defined as "any municipality that is adjacent to the municipality in which the discharge occurred." Thus, the municipal notification requirement will apply to the city, town or village where the discharge took place and to any city, town or village adjacent to that municipality which may be affected by the discharge. These more limited definitions are sufficient to place communities in close proximity to the discharge location on notice of the discharge. The final rule provides that POTWs and POSSs are in compliance with all of the rule's electronic reporting and notification requirements if they register to use the department approved form of electronic media (currently NY-ALERT) and submit timely and sufficient reports when required. Under the NY-ALERT system anyone may sign up to receive alerts.

The rule does not obligate municipalities to upgrade the infrastructure of POTWs and POSSs or to install monitoring equipment because SPRTK expressly limits reporting and notification requirements to discharges that are "knowable with existing systems and models" (ECL section 17-0826-a (1)). But, the rule does require that with respect to CSOs for which real-time telemetered discharge monitoring and detection does not exist, owners and operators of POTWs and POSSs expeditiously issue advisories to the general public through appropriate electronic media as determined by DEC when, based on actual rainfall data or predictive models, enough rain has fallen that CSOs may discharge. These advisories may be made on a waterbody basis rather than by individual combined sewer overflow points.

The rule also requires owners of POSSs to: 1) obtain registrations for their facilities so that DEC may regulate these entities which are not currently required to obtain SPDES permits and 2) notify DEC of a change in facility ownership or operation. Moreover, the rule requires owners and operators of POTWs and POSSs to: 1) properly operate and maintain their facilities; 2) file five day written incident reports (as currently required for POTW SPDES permittees and other SPDES permittees); and 3) allow DEC authorized representatives to conduct inspections and copy records. DEC estimates that there are approximately 300 POSSs statewide. The rule extends direct regulatory oversight to this new group of entities.

6. 'Paperwork.' The rule mandates additional reporting requirements for owners and operators of POTWs and POSSs. The NY-ALERT system will be used to implement the reporting and notification requirements in new 6 NYCRR 750-2.7 (b) (2) (i)-(iv). In addition, the rule requires owners of POSSs to obtain registrations for their facilities and notify DEC of a change in facility ownership or operation. Furthermore, the rule obligates owners and operators of POSSs to file five day written incident reports as presently required for POTWs and other SPDES permittes. These obligations will be met by submission of completed forms prescribed by or acceptable to DEC. The reporting, notification and paperwork requirements associated with the rule are necessary to implement ECL section 17-0826-a which expressly mandates two hour reporting and the substance of the reports, four hour notification requirements, and establishes POSSs as a new group of regulated entities. Presently, DEC has determined that 98% of POTWs and an estimated 70% POSSs have registered with DEC to be authorized to report using the NY-ALERT system.

7. 'Duplication.' Under existing regulations, SPDES permittees are only required to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery if the discharge would affect a bathing area during the bathing season, shellfishing or a public drinking water intake (6 NYCRR 750-2.7 (b)), whereas untreated and partially treated sewage discharges affecting other areas must currently be orally reported to DEC by SPDES permittees, in most instances, within twenty-four hours of discovery (6 NYCRR 750-2.7 (c)). Under the final rule, two hour reporting by owners and operators of POTWs and POSSs generally applies to all untreated and partially treated sewage discharges, irrespective of the area impacted by the discharge. The rule prevents duplication by eliminating twenty-four hour oral reporting by POTW SPDES permittees of those discharges currently described in 6 NYCRR 750-2.7 (c) that will now be covered by the new two hour reporting. Use of the NY-ALERT system also eliminates the current need to report separately to regulatory agencies listed in the POTW permit by replacing telephone and paper reporting with a single NY-ALERT report.

8. 'Alternatives.' SPRTK imposes two hour reporting and four hour notification requirements upon owners and operators of POTWs and POSSs. POTWs are currently defined to include publicly owned sewer systems that discharge to a POTW that is owned by the same municipality. The final rule leaves the definition of 'POTW' unchanged and defines the term 'POSS' to be "a sewer system owned by a municipality and which discharges to a POTW owned by another municipality." The final rule requires registrations for POSSs, while continuing to require SPDES permits for POTWs. DEC considered the alternative of issuing SPDES permits instead of registrations for POSSs. This alternative was rejected because a registration program is sufficient to implement SPRTK's reporting and notification requirements for POSSs and will provide DEC with all necessary information.

DEC also considered the alternative of requiring municipalities to develop their own systems to implement SPRTK's reporting and notification requirements rather than utilizing NY-ALERT. DEC rejected this alternative for several reasons. First, the upgrade to NY-ALERT is designed so that it is easy for POTWs and POSSs to use and will prompt these entities to supply all necessary information in an organized manner that is useful to DEC, NYSDOH, local health departments, municipalities and the general public - all of which will have appropriate levels of access to NY-ALERT. The NY-ALERT system will also encourage uniformity in reporting and prevent unnecessary duplication by allowing POTWs and POSSs to satisfy all of SPRTK's electronic reporting and notification requirements for an incident at the same time through a common system. Furthermore, NY-ALERT will save municipalities the expense of each developing their own electronic systems and enable DEC, NYSDOH and local health departments to conserve resources because staff will only need to become familiar with one reporting system. By using NY-ALERT, DEC will be able to track discharges, control computer system security, and maintain data quality. NY-ALERT will facilitate the expeditious posting of discharge information on the DEC website and the compiling of DEC's annual report of discharges. Finally, NY-ALERT will help prevent confusion for the general public because this same system will be used throughout the state to accomplish the required four hour public notification. If DEC switches from NY-ALERT to another electronic system in the future for any reason, it will seek a system that can achieve benefits similar to those of the NY-ALERT system discussed above.

9. 'Federal standards.' The final rule exceeds the standards of the federal government for the same or similar subject areas. Federal regulations require permittees to orally report any noncompliance that may endanger health or the environment within twenty-four hours of becoming aware of the circumstances (40 CFR 122.41 (l) (6)). Furthermore, federal law obligates permittees to file a written submission regarding the incident within five days from the time that the permittee becomes aware of the circumstances (Id.). These requirements are also contained in current DEC regulations (6 NYCRR 750-2.7 (c), (d)). The final rule will extend the five day reporting requirement to owners and operators of POSSs, as defined in the rule making, which are not currently regulated through the National Pollutant Discharge Elimination System (NPDES) permit program.

Furthermore, federal law does not require owners and operators of POTWs or POSSs to report untreated and partially treated sewage discharges to the government within two hours of discovery or to notify the municipality where the discharge occurred, adjoining municipalities that may be affected, or the general public of these sewage discharges within four hours of discovery. The final rule will be more protective of the public health and the environment by imposing these reporting and notification obligations and by requiring that reporting continue each day until a discharge terminates. In addition, federal law does not provide for the expeditious issuance of CSO advisories to the public by owners and operators of POTWs and POSSs as specified in the final rule. Finally, the rule requires owners of POSSs, as defined in the rule making, to register the facility and inform DEC of a change in facility ownership or operation. No such obligations exist under federal law. Therefore, the final rule is more stringent than the standards of the federal government. The rule exceeds federal standards because ECL section 17-0826-a mandates the specific reporting and notification requirements imposed by this rule.

10. 'Compliance schedule.' The rule takes effect upon filing of the rule with the secretary of state and publication of the notice of adoption in the State Register (SAPA 203 (1)). Regulated entities will be able to comply with the rule as soon as it takes effect.


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