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Summary of Revised Regulatory Impact Statement for SPRTK

1. 'Statutory authority.' The rule is authorized by Environmental Conservation Law (ECL) 17-0826-a, known as the Sewage Pollution Right to Know Act (SPRTK), which took effect on May 1, 2013 and expressly directs the Department of Environmental Conservation (DEC) to promulgate regulations that are necessary to implement this statute (ECL 17-0826-a (2), (4)). In addition to the specific statutory authority for the rule contained in SPRTK, DEC has general rule making authority pursuant to ECL 3-0301(2)(m) to effectuate the purposes of the ECL and authority to promulgate regulations with respect to the SPDES program in ECL 17-0303(3), 17-0803 and 17-0804.

SPRTK requires publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (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 have to be reported. Under existing regulations, two hour reporting is limited to discharges by State Pollutant Discharge Elimination System (SPDES) permittees (consisting primarily of POTWs and privately-owned commercial 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 expansive two hour reporting obligation. SPRTK also requires POTWs and operators of POSSs to notify the chief elected official of the municipality where the discharge occurred and adjoining municipalities that may be affected of untreated and partially treated sewage discharges as soon as possible, but no later than four hours from discovering the discharge. The general public must also be notified within the same timeframe of any discharges that may present a public health threat. The rule implements the new reporting and notification obligations through language that aligns with SPRTK.

The rule defines a 'POSS' as "a sewer system owned by a municipality and which discharges to a POTW owned by another municipality" because under current regulations those sewer systems that discharge to a POTW owned by the same municipality are considered part of the POTW and are covered by the SPDES permit for the POTW. The rule requires owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Furthermore, owners and operators of POSSs are obligated to properly operate and maintain their facilities; file five day written incident reports; and allow DEC to conduct inspections and copy records.

2. 'Legislative objectives.' The rule accords with the public policy objectives that the Legislature sought to advance by enacting SPRTK. One public policy objective of the Legislature was to protect the public health and the environment. Untreated and partially treated sewage contains pathogens that can cause acute illnesses.

3. 'Needs and benefits.' The purpose of the rule is to implement ECL 17-0826-a which is intended to facilitate prompt responses to untreated and partially treated sewage discharges by state and local authorities and inform the public of these discharges so that they may avoid exposure. The rule helps protect the public health and environment by obligating 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 until the discharge terminates, irrespective of the area impacted by the discharge. The rule also requires owners and operators of POTWs and POSSs to notify the municipality where the discharge occurred and adjoining municipalities that may be affected as soon as possible, but no later than four hours from discovery of surface water discharges. The same notification must also be made within the same timeframe to the general public for surface water discharges. Furthermore, the rule accords with the legislative objective to bring POSSs into DEC's regulatory program by requiring registrations for POSSs.

The rule does not obligate municipalities to upgrade the infrastructure of POTWs and POSSs or install monitoring equipment because SPRTK expressly limits reporting and notification requirements to discharges that are "knowable with existing systems and models" (ECL 17-0826-a (1)). The rule, however, does require owners and operators of POTWs and POSSs in specified situations to expeditiously issue CSO advisories. These advisories may be made on a waterbody basis.

Sewage discharge reports may be used by DEC to make decisions regarding closing of shellfish lands and prohibiting shellfish activities. DEC may also use reported information to take enforcement action against wastewater utilities, seeking penalties and permanent corrective measures. Furthermore, NYSDOH and local health departments may use reported information to assess the potential impact on public and private water supplies and to make determinations about regulating bathing beaches.

The rule is necessary to implement SPRTK's reporting and notification requirements and to establish a registration program for POSSs. The rule will benefit the public health and the environment by obligating owners and operators of POTWs and POSSs to report and disclose untreated and partially treated sewage discharges.

4. 'Costs.' Some municipalities that have POTWs or POSSs (or their contractors) may need to upgrade their computer systems at a cost of approximately $1,000 to comply with the rule's electronic reporting and notification provisions and incur employee expenses to comply with the rule at the average pay rate for a POTW or POSS operator in the locality. 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. Furthermore, DEC will need to incur expenses to develop the electronic media to be used by owners and operators of POTWs and POSSs to carry out the rule's electronic reporting and notification requirements. DEC has currently selected the NY-ALERT system maintained by the Department of Homeland Security and Emergency Services (DHSES) for this purpose. The necessary upgrade to NY-ALERT is expected to cost DEC approximately $50,000. This estimate was supplied by Buffalo Computer Graphics, the NY-ALERT consultant for DHSES. Moreover, 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 SPRTK. This rule imposes no cost on POTWs and POSSs to develop CSO reporting systems.

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, irrespective of the area impacted by the discharge, except partially treated sewage discharged directly from a POTW that is in compliance with a DEC approved plan or permit. POTWs and POSSs include systems that are owned by "a county, town, city, village, district corporation, special improvement district, sewer authority or agency thereof."

The rule also obligates owners and operators of POTWs and POSSs to notify the chief elected official 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 provides that these entities must also notify the general public of surface water discharges within the same timeframe. As with the two hour reporting requirement, four hour notifications will 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, the rule defines 'municipality' to mean "a city, town or village," and an 'adjoining municipality' to be "any municipality that is adjacent to the municipality in which the discharge occurred." Furthermore, the rule requires owners of POSSs to register their facilities and notify DEC of a change in facility ownership or operation. Finally, the rule obligates owners and operators of POSSs to file five day written incident reports; properly operate and maintain their facilities; and allow DEC to conduct inspections and copy records.

6. 'Paperwork.' The rule requires POTWs and POSSs to use the Department approved form of electronic media (currently NY-ALERT) to carry out all of the electronic reporting and notification provisions described in new 6 NYCRR 750-2.7(b)(2)(i)-(iv). Registrations for POSSs, five day written incident reports, and notifications of a change in POSS ownership or operation need to be completed on forms prescribed by or acceptable to DEC. The rule's reporting, notification and paperwork requirements are necessary to implement SPRTK which expressly mandates two hour reporting and four hour notifications and establishes POSSs as a new group of regulated entities.

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, whereas untreated and partially treated sewage discharges affecting other areas must be orally reported to DEC, in most instances, within 24 hours of discovery (6 NYCRR 750-2.7(b), (c)). Under the rule, two hour reporting by owners and operators of POTWs and POSSs generally applies to all untreated and partially treated sewage discharges that have been discovered, irrespective of the area impacted by the discharge. The rule prevents duplication by eliminating 24 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. NY-ALERT 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.' DEC considered requiring owners of POSSs to obtain SPDES permits rather than registrations. This alternative was rejected because registrations are sufficient to implement SPRTK's requirements for POSSs. DEC also considered requiring municipalities to develop their own systems to comply with SPRTK. This alternative was also rejected due to the many benefits of NY-ALERT. NY-ALERT will be easy for owners and operators of POTWs and POSSs to use and will allow them to satisfy all of the rule's electronic reporting and notification obligations at the same time through a common system. By using NY-ALERT, DEC will be able to track discharges, control computer system security, maintain data quality and satisfy its statutory obligations efficiently. NY-ALERT will also save municipalities the expense of developing their own systems. If DEC switches from NY-ALERT to another electronic system in the future, it will seek a system that provides similar attributes.

9. 'Federal standards.' The rule exceeds federal standards for the same or similar subject areas. The rule extends the requirement to file five day written incident reports to owners and operators of POSSs which are not currently subject to federal or state five day reporting (40 CFR 122.41(l)(6); 6 NYCRR 750-2.7(d)). Furthermore, there is no federal requirement that owners and operators of POTWs and POSSs report untreated and partially treated sewage discharges to the government within two hours of discovery or that they notify the municipality where the discharge occurred, adjoining municipalities that may be affected, or the general public of discharges within four hours of discovery. Federal law also does not provide for expeditious issuance of CSO advisories by owners and operators of POTWs and POSSs. Finally, owners of POSSs are not required by federal law to obtain registrations or inform the government of a change in facility ownership or operation. The rule exceeds federal standards because SPRTK 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. Regulated entities will be able to comply with the rule as soon as it takes effect.


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